Joint Will

A joint will contained in a single instrument is the will of each of the makers, and at the death of one may be probated as his will and be again probated at the death of the other as the will of the latter. Wills may be joint or mutual or both joint and mutual. A joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. It is not necessarily either mutual or reciprocal. Mutual wills may be defined as the separate wills of two persons which are reciprocal in their provisions. A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal, and which shows on its face that the devises are made one in consideration of the other. These several classes of wills have some characteristics that distinguish them one from the other. A joint will which is not reciprocal is simply the individual personal will of each of the persons signing the same and is subject to the same rules that would apply if the will were several. Mutual wills, — that is, where two persons execute wills reciprocal in their provisions but separate instruments, — may or may not be revocable at the pleasure of either party, according to the circumstances and understanding upon which they were executed. To deprive either party of the right to revoke such mutual will it is necessary to prove, by clear and satisfactory evidence, that such wills were executed in pursuance of a contract or a compact between the parties, and that each is the consideration for the other; and even in cases where mutual wills have been executed in pursuance of a compact or agreement between the parties, the law appears to be well settled that either party may, during the lifetime of both, withdraw from the compact and revoke the will as to him. A joint and mutual will is revocable during the joint lives but it becomes irrevocable after the death of one of them if the survivor takes advantage of the provision made by the other. 30 Am. & Eng. Ency. of Law (2d ed.), 621, 1 Redfield on Wills, 182, 183; Walpole v. Orford, 3 Ves. Jr. 402; Schouler on Wills, § 455 et seq. When mutual or joint wills first came up for consideration, the courts of England, both common law and spiritual, pronounced against them, and the same unfavorable position was taken by some of the earlier American cases, but the later and better opinions in both countries now sustain such wills where they have been executed with the necessary formalities and have not been revoked by some later instrument. Schouler on Wills, 456. In a leading case in England on this subject (1 Dick. 419) it was held that a joint and mutual will might be revoked by both jointly or that it might be revoked separately, provided the party intending it had given notice to the other of such revocation, but that neither of them could, during their joint lives, revoke it secretly, nor could it be done by the survivor after the death of the other; that such wills constituted a mutual contract between the parties which could not be rescinded by the survivor after the death of one, on the theory that the first that dies carries his part of the contract into execution. In such a case the courts will not permit the other party to afterwards break the contract. The doctrine of this case has been approved in a number of well considered cases in this country. 86 Wis. 364; 155 N. Y. 55; 72 Mich. 76; 198 Mo. 289; 243 Ill. 84, 85.