By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Last Will & Trust Attorney

A joint Will with a promise by a spouse or a person not to change its terms after the death of the first spouse are, in my opinion, generally enforceable in NJ with some exceptions. In one recent case a husband and wife with three children executed a joint will that provided the survivor would take the entire estate (and I quote) “to be sued, occupied, enjoyed, conveyed and expended by and during the life of such survivor, as such survivor shall desire and that upon the death of such survivor, any of such estate then remaining was (shall) go to and vest in any child or children of this marriage.” The husband died in 1980, and his will was probated. Later his wife executed a new will expressly revoking the earlier will. The effect of the mom’s will was to dispose of the remainder estate to only one of the three children. After mom died the one child filed an application to probate her revised will. The other two children filed an opposition to the application, arguing that mom’s later will was executed in breach of the earlier will, which was a contractual will. The trial court granted summary judgement in favor of the contestants brothers and imposed a constructive trust on the estate in favor of the terms of the earlier will. The appellate court affirmed.

Why you may ask. The answer is quite straightforward. A joint will becomes contractual when it is executed pursuant to an agreement between the creators (called testators) to dispose of their property in a particular way, each agreeing with the other not to make future changes. To determine if a joint will is contractual, the primary factor to consider is whether the will, as a whole, sets forth “a comprehensive plan for disposing of the whole estate of either or both” of the testators. A joint will constitutes a contract if it meets the following two-prong test: (1) the gift to the survivor is not absolute and unconditional, and (2) the balance remaining from the estate of the first to die and the estate of the last to die is treated as being one estate and jointly disposed of by both testators upon the death of the second party as set forth under the terms of the will.

In this case the court first determined that the earlier will treated the balance remaining from the estate of the first to die and the estate of the last to die as a single estate which was jointly disposed of by both testators – i.e., “to any child or children of this marriage.”

The plaintiff argued that the earlier will intended to give the survivor the “option” of devising the property to one or more of the children. The court rejected this argument and held that the will provided for a disposition, by class gift (class being the kids), of the remaining estate after the survivor of the two spouses passed away. Courts routinely construe the phrase “child or children” as a class designation.

The court thus concluded that the will was a contractual will that unambiguously set forth a comprehensive plan for disposing of the entire estate, while providing both for the disposition of the property upon the death of the first to die and the disposition of the property remaining at the death of the survivor. As mom’s later will circumvented the terms of the will, the court affirmed the trial court’s constructive trust enforcing the terms of the original will.

When should you consider using a Joint Will? The use of a joint will can be beneficial if there is a concern that upon a death the surviving spouse may remove, disinherit or leave out one or more children or beneficiaries. It’s a potent tool and you must understand the pro’s & con’s of how it can be used. They can be effective especially in second marriages.

To discuss your NJ Last Will & Trust matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.