If spouses want to execute a joint and mutual that binds the surviving spouse to a joint testamentary scheme, then they need to be very deliberate about their intent.  In Estate of Martin (Rule 23 Order), an Illinois appellate court determined that the “Joint Last Will and Testament of Daniel D. Martin Sr. and Florence M. Martin” was not, in fact, a joint and mutual will that prohibited Florence from changing the disposition of property after Daniel, Sr.’s death.

In 1990, Daniel, Sr. and Florence owned real estate in Chicago as joint tenants with rights of survivorship.  The “Joint Last Will and Testament of Daniel D. Martin Sr. and Florence M. Martin,” executed on March 12, 1990, left that property equally to their two sons, Michael and Daniel, Jr.  Daniel, Sr. died in 1998, and, Florence, as the surviving joint tenant, became owner of the property.  In 2005, Florence met with her estate planning attorney and discussed placing the property in a land trust where the property would go to Daniel, Jr. upon her death.  Florence eventually signed a quit claim deed in trust and a land trust agreement where the property would go to Daniel, Jr.  When Florence died in 2006, Michael filed a complaint alleging, among other things, that Florence breached the joint and mutual will between Florence and Daniel, Sr.  Why wasn’t this a joint and mutual will that would have required Florence to keep in place the testamentary scheme set forth in her earlier will with Daniel, Sr.?

We must start with the understanding that a joint and mutual will is a contract between testators, which means that, as with any contract, some consideration between the parties is necessary.  Earlier decisions of Illinois courts determined that, where a joint and mutual will was executed between two spouses, their mutual love and respect was sufficient consideration.  More recent decisions in Illinois have looked to the provisions of the will itself and to other proof for a binding contract between the testators.

Illinois courts will consider five factors in determining whether a will is a binding joint and mutual will:

  1. The label used by the testators.
  2. Reciprocal provisions in which the testators disposed of their entire estate in favor of the other.
  3. A pooling of the testators’ interests into one joint fund.
  4. A common dispositive scheme disposing of the common fund to their heirs in approximately equal shares.
  5. Use by the testators of common plural terms such as “we” and “our” as further evidence of their intent to make a joint and mutual will.

Although the Martins’ will satisfied one of the five factors by using plural pronouns, it was not labeled “joint and mutual.”  Apparently, the couple’s use of the term “joint” was insufficient and the appellate court wanted both “joint” and “mutual” used to satisfy this factor.  Michael pointed to a provision in the will as proof of reciprocity, pooling of interests, and a common dispositive scheme.  We don’t know what this article was, but the appellate court discounted it as “boilerplate” from a form book that was insufficient to establish any agreement that the terms of the will were irrevocable by the surviving spouse.

In affirming the trial court’s finding that the will was not a joint and mutual will, the appellate court relied heavily on the testimony of the drafting attorney.  The attorney testified that the will was not prepared with the intent of having a formal contract or agreement between the testators.  There was no discussion that the testators had an agreement or contract between each other to leave the property equally to their sons.  Neither stated that the other was prohibited from changing the will. The attorney stated that it was his procedure to prepare one will for a couple rather than two, and the will was not created especially for the Martins but came from a form book on his computer.