Contingent Will

A joint will of Husband and Wife leaving the entire estate to one child began with the phrase, “In the event of our deaths.” At the time of Husband’s death, Wife was still alive and thus the non-children beneficiaries claimed that the will could not take effect because the contingency was not satisfied, that is, both of the testators were not deceased. The trial court granted summary judgment that the will was contingent.

The appellate court reversed. The court looked at the conflict between the singular “event” and plural “deaths” in the will and decided that the language is susceptible to different interpretations. The triggering event could be the death of one spouse or it could be the simultaneous deaths of both spouses. Because the will is ambiguous, summary judgment was improper and the court remanded for the probate court to construe the will after considering extrinsic evidence of the Husband’s intent.

Note: A dissenting judge did not believe that a co-testator’s signature on a joint will could also be considered as a witness.

Moral: First and foremost, do not prepare a joint will under any circumstances. And then, draft carefully so it is clear whether a will is absolute or contingent.