In a decision handed down on July 11,2005, New York’s Appellate Division made some important distinctions between joint and mutual wills. Schloss v. Koslow, 800 N.Y.S.2d 715(A.D.2 Dept 2005) found that there was insufficient basis to infer that a promise by a testator never to alter or revoke his will gave rise to a binding contract which might be enforced by a third party beneficiary.

Joint wills are dubious propositions at best. A joint will consists of a single instrument containing the wills of two or more persons and disposes of property owned jointly, in common or separately by them. A joint will is oblivious to the many events which alter our lives as time progresses and can usually not be amended or revoked after one of its makers has died.

The court found that these two separately drawn –but basically “mirror image”– wills were mutual wills. Each of the wills contained a statement of intent to apply all of the estate assets for the support of the spouse and then a daughter and a niece, further reciting that the other spouse was to make a will with a similar disposition. After the wife passed away and her husband subsequently changed his will, their niece sued as a third party benificiary to prevent her uncle from revoking his will.

The lower court granted the uncle’s motion for summary judgment to dismiss the proceeding . In affirming this determination, the Appellate Division noted that the uncle’s original will lacked “contractual language” to establish that there was a “clear and unambiguous ” promise to renounce his right to subsequently revoke and alter his will . The court concluded that the “mutual wills in this case do not furnish a sufficient basis upon which to infer a promise by the defendant never to alter or revoke his will “. That said, the court elected not to entertain arguements by the niece as to whether or not a constructive trust had been established by the mutual wills.