In Estate of Pursley, a husband and wife (Harold Sr. and Mildred) with three children executed a joint will in 1975 that provided the survivor would take the entire estate “to be used, occupied, enjoyed, conveyed and expended by and during the life of such survivor, as such survivor shall desire and that upon the death of such survivor, any of such estate then remaining shall go to and vest in any child or children of this marriage.” No. 13-14-00667-CV, 2015 2015 Tex. App. LEXIS 11985 (Tex. App.—San Antonio Nov. 24, 2015, no pet. h.). Harold, Sr. died in 1980, and Mildred probated the 1975 will. In 2007, Mildred executed a new will expressly revoking the 1975 will, and in 2010, Mildred amended the 2007 will with a codicil. The effect of the 2007 will and 2010 codicil was to dispose of the remainder estate to only two of the three Pursley children. After Mildred died in 2011, one of the children (Rocky) filed an application to probate her 2007 will and 2010 codicil. The other two children (Rocky’s brothers) filed an opposition to the application, arguing that Mildred’s later will and codicil were executed in breach of the 1975 will, which was a contractual will. The trial court granted summary judgment in favor of Rocky’s brothers and imposed a constructive trust on the estate in favor of the terms of the 1975 will. The court of appeals affirmed.
A joint will becomes contractual when it is executed pursuant to an agreement between the testators to dispose of their property in a particular manner, each in consideration of the other. To determine if a joint will is contractual, the primary factor to consider is whether the will, as a whole, sets forth “a comprehensive plan for disposing of the whole estate of either or both” of the testators. A joint will constitutes a contractual will if it meets the following two-prong test: (1) the gift to the survivor is not absolute and unconditional, even though it may initially appear to be so; and (2) the balance remaining from the estate of the first to die and the estate of the last to die is treated as a single estate and jointly disposed of by both testators in the secondary dispositive provisions of the will.
The court first determined that the 1975 will provided for a disposition of property to the survivor that was neither unconditional nor absolute. The language in the will that upon the death of either spouse the surviving spouse would take the estate “during the life of such survivor” created a life estate. The court then determined that the 1975 will treated the balance remaining from the estate of the first to die and the estate of the last to die as a single estate which was jointly disposed of by both testators – i.e., “to any child or children of this marriage.”
Rocky argued that via the 1975 will’s language providing the remainder of the estate “shall go to and vest in any child or children of this marriage,” Harold, Sr. and Mildred chose not to determine what child or children would receive what share of the remaining property. Rather, he argued that the 1975 will intended to give the survivor the option of devising the property to one or more of the children. The court rejected this argument and held that the 1975 will provided for a disposition, by class gift, of the remaining estate after the survivor of the two spouses passed away. At the time the will was drafted, Texas courts routinely construed the phrase “child or children” as a class designation.
The court thus concluded that the 1975 will was a contractual will that unambiguously set forth a comprehensive plan for disposing of the entire estate, while providing both for the disposition of the property upon the death of the first to die and the disposition of the property remaining at the death of the survivor. As Mildred’s later will and codicil circumvented the terms of the 1975 will, the court affirmed the trial court’s constructive trust enforcing the terms of the 1975 will.
Interesting Note: Texas Estates Code section 254.004 requires that a joint will expressly recite that a contract exists. See Tex. Estates Code Ann. § 254.004 (formerly codified as Tex. Prob. Code § 59A). In the Estate of Pursley case, that section was not applicable because the 1975 will was executed prior to the statute’s effective date of September 1, 1979. Additionally, it was important to the court that the will was drafted by an attorney – with the attorney’s use of technical terms to carry out the intentions of the testator, it could “be assumed that such terms used in the will were used correctly and intentionally.”