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A Joint Will Is Not A Bargain BOGO

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Two for the price of one is irresistible. The proverbial “Buy One, Get One Free” (compressed these days into the acronym “BOGO”) is a pretty good deal: buy the 2-liter bottle, get a second one at no cost.

Some people figure that idea applies to legal documents, too: “If I don’t have to get two wills, but can get a Joint Will which we share, well, that’s a pretty good deal, right?” Wrong.

The problem: the promises from years ago doesn’t necessarily fit the realities of today. And so titling the document as a “Joint Will” doesn’t make its terms binding forever.

Example: the couple does a “Joint Will.” One dies. The survivor lives for a long time.

What’s this got to do with it? Well, over time, a surviving spouse’s feelings can change.  So this isn’t necessarily written in stone:

“Don’t worry, honey, we leave everything to each other, and then to your children and my children equally.”

Over the years, maybe the surviving spouse no longer hears from the stepchildren.  Perhaps the surviving spouse falls into a new, meaningful relationship. Possibly those inherited assets are spent (or deflected) by someone caring for the surviving spouse. You get the idea; things happen.

And consequently, there’s nothing left to go under the second step of the Joint Will.

Or most simply, the survivor decides to make a new will.

Which controls? The new Will or the old Joint Will?

For openers, a Joint Will isn’t automatically binding on both the signers.  A Will labeled “Joint” can be revoked by the survivor at any time unless the document has some particular binding contract-type terms in it.

Consider Opal and her husband George.  They signed a single document — titled  “Joint Will” — in 1997. It left everything to the other. Then it provided that when the other of them, died, their daughter Mary got the real estate, and their sons got all the cash.

So the first part was easy: George died.  Opal got everything.

But before Opal died a few years later, she made a new Will. In it, she disinherited daughter Mary and left everything to her two sons.

Why? Opal wrote in her Will that during her lifetime, she had loaned a “significant amount of money” to Joan; and Joan hadn’t paid any of it back. Therefore, wrote Opal, her daughter had effectively received her inheritance already.

Of course, when Opal died, her sons tried to probate their mother’s Will.  Opal’s daughter Joan challenged it. She wanted the court to set aside that newer Will, so that everything Opal owned at her death would pass under that 1997Joint Will . . . the one that left her the real estate.

The Georgia Supreme Court said “nope.” The reason: to make a Joint Will binding when both people are gone, it must contain contract terms . . . in effect, to make the Will into a binding contract between the Will signers.  Otherwise, per the latest statute, “A joint will or mutual wills may be revoked by any testator in the same manner as any other will.”

So without those magic contract words, after the father died, wife Opal could do what she wanted . . . and did.

Sure, there are some Joint Wills which are enforced.  In 2011, the Supreme Court dealt with the husband who had two children from a prior marriage, and so did the wife. They did a “Joint and Mutual” will, so that when both were gone, everything would be divided equally among the four.

But after the husband died, the wife took all she inherited and put it into her own name.  Then she divided everything up differently.

Here, the Supreme Court found that with particular language, there was a contract between the husband and wife and unwound the transaction. The Joint and Mutual Will was enforced.

The bottom line: it’s easy to avoid the quicksand of litigation, and not get seduced into a “This is easier, cheaper, and it’s what we both want” document.  Circumstances change.  Spouses survive. Relations change with relatives and step-relatives. And caregiving eats assets.

So opt for two wills, even if they are parallel.  Revocable trusts can prevent the problem, too. But resist the false economy of the joint document. An “I want what you want and you want what I want” BOGO can be bogus.

George practices in Sandy Springs and Big Canoe, and is also Adjunct Professor in Emory Law School’s Center for Transactional Law. Questions are welcome; reach him at Fox@GaLaw.com or on Facebook. He also cautions that what’s above is not legal advice, and you should seek professional advice before doing or not doing something based on this material.

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