Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, July 15, 2020

Vermont Supreme Court: Contract For Mutual Wills Does Not Impact Allowance of Subsequent Will

Wills-estate-battleIn the July 2020 Vermont Supreme Court case of In re Estate of Patricia Bixby, the Court reviewed the probate court's allowance of a decedent's will, which was challenged on the ground that a contract for mutual wills rendered the subsequent will invalid. 

Decedent and her ex-husband had three children together before they divorced in 1978. In 1997, decedent and her ex-husband each executed a mutual will in Arizona. 

Each will provided for the establishment of a testamentary trust to support the other former spouse during their lifetime. After both former spouses have died, each will provided for the remaining assets to be divided equally among three children. 

In 2006, decedent executed a will in Vermont revoking the 1997 will. The 2006 will divides most of the decedent's estate between two of her children. The 2006 will excludes decedent's ex-husband and third child, who is the appellant in this case. 

Decedent's ex-husband died in 2010 and decedent died in 2016.

After decedent's death in 2016, a special administrator was appointed. The special administrator filed a motion to allow Decedent's 2006 will. Appellant (the third child) objected to the motion. 

In April 2018, Appellant filed a motion to allow the 1997 will and disallow the 2006 will. Appellant argued that the 2006 will was invalid, because decedent had entered a valid and enforceable contract for mutual wills with her ex-husband. 

The Vermont court, probate division, determined that decedent's execution of the 2006 will revoked the 1997 will. The court reasoned that under Vermont law, a will may be revoked by executing a subsequent will that expressly revokes the previous will, and there is no exception for mutual wills. 

The Vermont Supreme Court noted that even if the decedent executed an enforceable contract for mutual wills in 1997, the existence of that contract has no impact on the allowance of the later will.

See, Vermont Supreme Court: Contract For Mutual Wills Does Not Impact Allowance of Subsequent Will, Probate Stars, July 13, 2020.


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