Wills - Joint, Mutual, Reciprocal
It is possible for two parties (usually a husband and wife) to enter into an agreement about how their estate plans will work. Such an agreement adds an element of contract to the estate planning process.
A common situation where parties might enter such an agreement involves a second marriage. For instance, John and Eva get married -- each is over the age of 50, and has two children from a prior marriage. They both want the survivor to receive the property of the first of them to die, but don't want that survivor to control the ultimate disposition of the property -- instead, they want all of their (combined) property to pass equally to their four children upon the survivor's death. So they enter into an agreement.
At this point, a little terminology might be helpful:
mutual or reciprocal Will(s): each party makes provisions for the benefit of the other
joint Will: the parties together sign one Will
Not all mutual or reciprocal Wills are joint Wills -- in many cases, each party has his or her own Will, containing provisions for the other's benefit. However, I'd venture a guess that all joint Wills are mutual or reciprocal.
Why would the parties want or need an agreement with respect to their Wills? Basically, to protect the first spouse to die from the actions of the surviving spouse. Consider the facts in the above example, and assume that Eva dies first. Her Will says that John gets all of her property if he survives her, and also contains a provision saying that all four children divide such property if John doesn't survive her. Eva goes to her grave believing that John's Will is reciprocal (leaving all property to Eva or, if Eva doesn't survive him, all to the four children equally). However, a year after Eva dies, John changes the provisions of his Will, to leave all of his property (including the property he inherited from Eva) to his two children only. Is that fair? The caselaw says it isn't. (And note that the law surrounding joint and mutual Wills is based on caselaw as opposed to statute.)
In re: the Estate of Lea J. Erickson is a recent Illinois appellate court decision on this topic, and can be found here. Erickson involves facts similar to the above example except that, instead of changing the provisions of her Will, the surviving spouse sold real estate to certain beneficiaries (but not others) for a nominal sum ($10) right before her death. The court ruled that these sales violated the terms of the joint and mutual Will entered into by Mrs. Erickson and her late husband Charles.
