The Revocability of Mutual or Reciprocal Wills

Abstract

The legal complications that impend where a husband and wife, or any two persons, joined by the bonds oif love, affection, relationship or any form of common interest, execute joint wills, or wills joint and mutual, are of such an awkward nature as to discourage those forms of testamentary disposition. The simplest type of single or individual testament is susceptible of too many miscarriages of purpose; joint wills and wills joint and mutual or reciprocal multiply the uncertainties of single wills geometrically. Courts of probate, while protesting in a mild and kindly fashion against joint and mutual wills, and reviewing the earlier ban on joint wills, recognize no modern legal objection to properly executed joint and mutual or double wills, but the practical objections to them are legion, and the most serious is the plastic state of the law on the question of revocability by the survivor. Let the man who contemplates joining with his wife in a joint will reciprocal in provisions consider the possibility that he will survive his wife by many years, perhaps, and remarry, and desire to provide for his second wife, but be bound by his joint will to devise and bequeath the joint estates of his first wife and himself to an agreed scheme of remaindermen that may include remote cousins or even persons to whom it would be intolerable for him to leave his estate, to the exclusion of his second wife from all participation in his estate, and even to the defeat of her dower interest therein.1