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WILLS/TRUSTS 8: What makes a will irrevocable?

The parties agreed that the decedent properly executed the 2005 will with his wife, but the probate court was asked to rule on whether the terms of that will made it irrevocable, which would mean that the decedent could not change his estate plan by way of the 2015 will.

MCL 700.2514 provides:

(1) If executed after July 1, 1979, a contract to make a will or devise, not to revoke a will or devise, or to die intestate may be established only by 1 or more of the following:

(a) Provisions of a will stating material provisions of the contract.

(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.

(c) A writing signed by the decedent evidencing the contract.

(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

The terms of the 2005 will created a life estate in the surviving spouse, after one spouse predeceased the other spouse, even though the surviving spouse could dispose of the estate’s property during his or her lifetime.  A grant of an estate to a spouse for her lifetime, with the remainder to named individuals, creates a life estate, even though the surviving spouse has the right to dispose of the estate’s property during her lifetime.

The 2005 will provides that, upon the death of the surviving spouse, the estate shall be divided among the couple’s three children and the decedent’s son. While the will does not explicitly state that it is irrevocable, the probate court ruled that a mutual or joint will may be revoked by either of the co-makers, provided it was not made in pursuance of a contract. But, where such a will has been executed in pursuance of a contract or agreement entered into by the testators to devise their separate property to certain designated beneficiaries, subject to a life estate or other interest in the survivor, it is generally held irrevocable when, upon the death of one, the survivor avails himself of the benefits of the devise in his favor.

Thus, for the terms of the will to be irrevocable upon the death of one of the parties, an agreement between the parties must be established. The general rule is a will jointly executed by two testators may disclose so clearly that it is the product of a contract between them, that the will itself is sufficient evidence to establish the contract.

The probate court was still overseeing the administration of the decedent’s estate when appellee raised his claim that the 2005 will was irrevocable. Having decided that the 2005 will established a binding contract that became irrevocable after the death of the wife in 2006, the probate court was authorized to compel specific performance of that contract, which necessarily precluded administration of the estate pursuant to the terms of the 2015 will. Accordingly, the probate court did not err in ruling that the 2015 will was void or invalid.

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