On 27 November 2001 William L. Collins (William) and Helen J.
Collins (Helen), husband and wife, executed wills with identical
language except for the name of the maker. The wills were prepared
by the same attorney. Under the 2001 wills, William and Helen
bequeathed and devised all assets to the surviving spouse in fee
simple. Upon the death of the survivor, the wills bequeathed and
devised the property to their four children equally. Plaintiffs,
William J. Collins, Jr., Barbara C. Rooks, and Freddie E. Collins,
are the children of William L. Collins from a prior marriage.
Defendant Lloyd Allen Stroupe (Allen) is the son of Helen J.
Collins from a prior marriage.
William died on 1 November 2002. Subsequently, on 9 January
2003, Helen executed a will in which she bequeathed her entire
estate and the inheritance from William's estate to her son Allen.
On the same day, Helen presented the Clerk of Lincoln County
Superior Court with a will of William executed on 29 April 1980.
She applied for and was appointed executrix of his estate.
Helen died on 22 March 2003. On 9 April 2003, Allen presented
Helen's will dated 9 January 2003 to the Clerk of Lincoln County
Superior Court. Allen was appointed executor of Helen's estate
and, accordingly, received Letters Testamentary. Allen was also
appointed successor executor of William's estate. On 26 June 2003plaintiffs filed a claim against Helen's estate. Allen, in his
capacity as executor of Helen's estate, rejected this claim. On 7
July 2003 plaintiffs filed a caveat action in superior court,
challenging the 1980 will of William that was admitted to probate.
Plaintiffs alleged that the 1980 will had been revoked when William
executed the 2001 will and that the 2001 will should have been
probated. According to plaintiffs, all parties agreed in a consent
order to probate William's
Plaintiffs filed a complaint in the instant action on 25
August 2003 against Helen's estate for breach of contract and
constructive trust. Both parties filed motions for summary
judgment. Plaintiffs argued that the mutual wills of William and
Helen dated 27 November 2001 formed an agreement and that Helen was
bound not to make a will different from her 2001 will. By
executing her will on 9 January 2003, plaintiffs contended, Helen
breached this agreement. On 8 August 2004 the trial court entered
an order granting plaintiffs' motion for summary judgment and
denying defendants' motion. Defendants appeal.
Defendants argue that because there was no contractual
language in the wills and no separate contract or agreement
incorporated into the wills, Helen was not contractually bound to
bequeath her property in the manner stated in the 2001 wills. We
agree with defendants that Godwin v. Trust Co.
, 259 N.C. 520, 131
S.E.2d 456 (1963), sets the framework for our analysis. In that
case, a husband
and wife executed two wills which were identicalexcept for the names of the makers. Godwin
, 259 N.C. at 524, 131
S.E.2d at 459. On the same day that they executed their respective
wills, the husband and wife jointly executed a trust agreement.
Each will declared that the property was to be disposed of as
provided in the provisions of the trust agreement. Id.
to the wife's death, the husband executed a new will, thereby
revoking his previous will. The trustee initiated an action to
compel specific performance of the alleged contract between the
husband and wife regarding the distribution of their property in
accordance with their wills. Id.
at 521, 131 S.E.2d at 457. Our
recognized the general principle that a mutual or
joint will may be revoked by either of the testators unless it was
made in pursuance of a contract. Id.
at 530, 131 S.E.2d at 463.
In the absence of a valid contract, . . . the mere concurrent
execution of the will, with full knowledge of its contents by both
testators, is not enough to establish a legal obligation to forbear
The Court concluded that the wills of the
husband and wife established the existence of a contract, as each
will expressly incorporated the trust agreement. Id.
Unlike the plaintiff in Godwin
, plaintiffs in the instant case
do not contend that there was a separate contract or trust
agreement in addition to the wills. The Godwin
Court examined a
contractual document incorporated into the wills, rather than the
language of the wills alone, as the basis for a contract. In two
later cases addressing joint wills, however, the Supreme Courtlooked no further than the will itself to find the necessary
In Olive v. Biggs
, 276 N.C. 445, 173 S.E.2d 301 (1970), the
husband and wife executed a joint will but no additional document
as evidence of a contract between them. The trial court found, and
this Court agreed, that since there was no contract between the
husband and wife, disposition of property recited in the joint will
could be changed without consent of the other party. Olive
N.C. at 453, 173 S.E.2d at 306-07. In reversing, the Supreme Court
stated that a joint will itself may be sufficient evidence of the
intent of the parties to enter a binding contract. Id.
at 461, 173
S.E.2d at 312. The will declared that We, Robert M Olive, Sr.,
and Ruth Sedberry Olive, husband and wife, . . . in consideration
of each making this OUR LAST WILL AND TESTAMENT
, do hereby MAKE,
PUBLISH and DECLARE this instrument to be jointly as well as
severally OUR LAST WILL AND TESTAMENT. Id.
at 462, 173 S.E.2d at
312-13 (capitalization in original). After reciting this
provision, the Court concluded: This is contractual language. It
is sufficient, in conjunction with the reciprocal devises and
bequests, to show the existence of a contract between the husband
and wife, pursuant to which the joint will was executed by them.
In Mansour v. Rabil
, 277 N.C. 364, 177 S.E.2d 849 (1970),
husband and wife executed a joint will which stated that we and
each of us contract to and with each other that the following isour joint Will and Testament and in every respect binding on both
at 373, 177 S.E.2d at 855 (emphasis in original). The
Court held that this was contractual language sufficient to show
the existence of a contract between the husband and wife. Id.
dictate that execution of a joint will does
not bind a husband and wife to the devises and bequests of property
set out therein unless the will or another document contains
contractual language evidencing the intent to enter into a binding
contract. We are mindful that the type of will at issue in these
cases was a joint will, as opposed to mutual wills. Nonetheless,
we see no reason to apply a different analysis to the burden of
establishing a contract within the four corners of a mutual will.
Plaintiffs fail to point to any contractual language contained
within the mutual wills in the instant case.
(See footnote 2)
There is no
statement in the wills of Helen and William expressing the clear
intent of the parties that the wills are made pursuant to a
contract. Cf. Robinson v. Graham
, 799 P.2d 610 (Okla. 1990) (jointwill of husband and wife expressly stated that it was the result of
a contract and that neither party to the agreement would revoke,
alter, or amend the will).
The mere fact that the provisions of
the wills are reciprocal and identical in language, except for the
name of the maker, is not sufficient to create a binding contract.
, 259 N.C. at 530, 131 S.E.2d at 463. In accordance with
the reasons stated above, we determine that plaintiffs failed to
prove a binding contract between Helen and William to dispose of
their property in the manner specified in their respective wills.
We, therefore, hold that the trial court erred in granting
plaintiffs' motion for summary judgment and in denying defendants'
motion for summary judgment.