by Jonathan A. Nelson
Occasionally, I get a question about whether a husband and wife creating a joint estate plan should have one will or two.
A joint will has been legally possible in Virginia since the 19th Century. Although I am not aware of any joint wills other than between spouses appearing in our case law, the case law also does not require marriage or any other similar relationship between the parties. As a practical matter, the original of the will is admitted to probate on the death of the first as to the property of the first, and then it is re-admitted by reference on the death of the second as to the property of the second.
For a number of practical reasons, however, joint wills are generally inadvisable. The execution of the document is easier to make a mistake on, whether in having the correct number of witnesses (neither testator counts as a witness) or in the self-proving affidavit correctly setting out what was done. If the surviving testator changes the county or state of his residence, it will make obtaining and probating the document difficult and may require litigation to establish the will, since the original is already held by another court. Furthermore, it requires the surviving testator’s executor to know both that the will has already been probated and that it is still the last will of the testator; an error as to either can require costly litigation to correct.
The joint will also requires great care in following its terms, particularly as to property conveyed from the first testator to the second, as that property would no longer be subject to a gift made only by the first testator even if there was a contingent beneficiary for that property; again, ambiguities or questions of interpretation are fertile grounds for otherwise avoidable litigation.
The case of Williams v. Williams, 123 Va. 643 (1918), involved more than a century ago what is perhaps the strongest reason to avoid a joint will:
The joint will itself is still revocable by the surviving testator as to his own property. Accordingly, it does not provide any protection to the first-to-die that the survivor will retain those terms. However, the fact that it is a joint will is always going to raise the question of whether the joint will was also a mutual contract to establish a will, which can be enforceable.
Rather than creating this question (which may only be resolvable by litigation), it is almost certainly preferable to set out the contract to establish a will as its own unambiguous document (or incorporated in the document that includes the consideration for the contract, such as in a premarital agreement), and execute separate wills which can more readily be judged to satisfy the contract or not.
A joint estate plan that provides both certainty and flexibility, while avoiding preventable legal conflicts, requires an experienced estate planning attorney who can carefully balance the individual circumstances of the family, understand the goals, and put in place the instruments that accomplish them.
Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.