Mutual Wills Result In Legal Battle

July 29, 2010 | Erin Herbold


This case involved an examination of the question of whether a surviving spouse may transfer land during life in contravention of mutual wills that had been previously executed with the now-deceased spouse.  The mutual wills were executed in 1987, and specified that the entire estate, including nearly 12 acres, would go to the survivor of the two and upon the death of the surviving spouse the property would be distributed between their children from prior relationships. The wills stated that they were mutual and contractual, and were not to be violated by the surviving spouse after the death of the first spouse.  In addition, both spouses agreed that neither would change their respective will without the written consent of the other and, to reiterate, that the wills would constitute a contractual will.

The husband died and the estate passed to the wife.  Several years later, the wife quitclaimed the land and house to the husband’s son, but reserved the right to reside on the property. She also executed a new will, changing a charitable bequest and deleted the husband’s son’s rights under the will in light of the quitclaim deed transfer. The wife died and her two children from a prior relationship sued the husband’s son, requesting that the house and land be put into a constructive trust so that they could obtain their rightful share.

At trial, the court examined the wills and determined that the quitclaim deed to the husband’s son violated them.  Thus, the court imposed a constructive trust on the property in favor of the remaining siblings.

On appeal to the Iowa Court of Appeals, the husband’s son argued that there was no evidence that the 1987 wills were properly executed and should not have been admitted into evidence at trial. However, the other two siblings only admitted the wills for the purpose of proving that the husband and wife had a mutual and contractual arrangement. Since the wills were not being admitted into probate, they were viewed as a contract or an agreement between two parties concerning the disposal of their property.  Because the children filed the action outside of probate, they were not required to comply with the statutory formalities of executing a will.

Based upon the language of the wills, the appellate court found that the wife could not deed the land to the husband’s son because that action directly contravened the contractual arrangement between the couple.  The court stated that since the 1987 wills were “mutual wills,” the wife received the benefit of the promise when she inherited all of her spouse’s property and, thus, was not at liberty to dispose of the jointly owned property during her life.  Thus, a constructive trust was imposed in favor of the remaining children.  Cunningham v. Lawson, No. 0-363/09-1740, 2010 Iowa App. LEXIS 758 (Iowa Ct. App., Jul. 14, 2010).