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Will That Followed Divorce Can Be Probated, But….

Will That Followed Divorce Can Be Probated, But....

Vermont’s high court rules that a contract for mutual wills does not invalidate a subsequently executed will, but finds that public policy supports enforcement of breach-of-contract claims.  In re Estate of Patricia Bixby McHugo (Vt., No. 2019-257, July 10, 2020).

In 1997, the testator, Patricia Bixby McHugo and her then-husband each executed mutual wills in Arizona.  The wills established testamentary trusts for the support of the other during his or her lifetime and provided that the assets remaining after their deaths would be divided equally among their three children.  In 2006, the Ms. McHugo executed a new will in Vermont that explicitly revoked all prior wills and removed her ex-husband and their third child, Susan Inouye, as beneficiaries.

Ms. McHugo died in 2016 while a resident of Vermont and her estate was probated.  Her ex-husband predeceased her, having died in 2010.  A special administrator motioned the court to allow the 2006 will and Ms. Inouye objected, asserting that she had filed pending contractual claims in Arizona courts related to the will.  Later, she motioned the probate court to allow the 1997 will and to disallow the 2006 will, arguing that the later will was invalid because it breached the contract for mutual wills.

The probate court denied the motion to allow the 1997 will and granted the motion to allow the 2006 will.  The court concluded that under Vermont law, the testator’s explicit revocation in the 2006 will of all prior wills was sufficient to revoke the 1997 will.  Ms. Inouye appealed, arguing that the probate court should have applied Arizona law to determine whether the 1997 contract for mutual wills invalidated the 2006 will or whether it could be enforced as a contract.  The other beneficiaries, Ms. Inouye’s siblings, argued that the court properly admitted the 2006 will and that contractual wills are contrary to public policy.

The Supreme Court of Vermont holds that the probate court properly followed Vermont law in determining that the 2006 will revoked the 1997 will.  The court finds that the allowance of the will is a narrow issue, based on whether the instrument reflects the will of the testator and is otherwise valid, and does not encompass challenges to the will’s interpretation or other claims against the estate. However, the court finds that public policy in Vermont has long supported the enforceability of contracts related to the disbursement of a decedent’s property and remands the matter to the probate court for further proceedings on the 1997 contract and the claimed breach of it.


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