Contractual Wills

Pre-§ 59A Joint Will Deemed Contractual

In re Estate of Osborne, 111 S.W.3d 218 (Tex. App.—Texarkana 2003, pet. denied).


Husband and Wife executed a joint will in 1978 providing for all property of the first to die to pass to the survivor. Upon the survivor’s death, all property would pass equally to their four children, two sons and two daughters. Without Husband’s knowledge or consent, Wife later executed a holographic will which left her entire estate to her two daughters. Husband died and Wife received his entire estate under the joint will. When Wife died, a dispute arose between the two daughters who wanted to probate Wife’s new will and the two sons who wanted to enforce the joint will as a contractual will. The trial court found that the joint will was contractual and imposed a constructive trust on Wife’s estate in the sons’ favor. The daughters appealed.

The appellate court affirmed. Because Husband and Wife executed the joint will before September 1, 1979, Probate Code § 59A did not apply. Accordingly, the primary factors the court examined to determine whether the joint will was contractual was whether the will (1) treats the property of both testators as one estate and (2) sets forth a comprehensive plan for disposing of both estates when the first testator dies and upon the death of the survivor. The court examined the joint will, determined that it met both of these criteria, and that it was contractual.

The court rejected the dissent’s argument that the will failed to dispose of the remainder of the estate upon the death of the survivor because the residuary clause did not expressly use the phrase “upon the death of the survivor” or words to that effect. The majority determined that by reading the will as a whole, it was clear that it disposed of the entire estate upon the survivor’s death.

Moral: The issue presented in this case was resolved by the enactment of Probate Code § 59A, effective with regard to wills executed on or after September 1, 1979, which requires that the terms of the contract be stated in the will or in a separate enforceable writing.