A MYSTIFYING PLETHORA OF RECENT CASES indicates that husbands and and wives seem to be placing much more euphoric confidence in the judicial enforcement of their contractual wills than they do in unbargained-for assurances by the spouse that the provisions of such will never be changed. Many cases indicate that married couples feel that while mutual trust and confidence may be a revered tradition resulting from matrimonial bliss, they prefer to superimpose upon testamentary dispositions of their estates the common law concept of contract as an agreement which the courts will enforce. The repeated pattern of the various cases is that the respective spouses agree that their property shall be disposed of in accordance with their contractually executed wills; the first spouse to die does so with perhaps the ingenuous belief that contract obligation will somehow compel devotion to the spousal agreement which trust and loyalty apparently would not. It is made manifest by the case law that when the surviving spouse changes the provisions of the will upon which there was superimposed the contractual arrangement, the beneficiaries under the contractual will be granted enforcement remedies by the courts, under the theory that the changing of the contractual will was a material breach of the contract. The typical remedy afforded by the courts is the equitable remedy of the constructive trust.
Dewey, Addison E.
"Contractual Wills: Misplaced Marital Loyalties: Eunsuing Litigation: Increased Federal Estate Taxes,"
Akron Law Review: Vol. 8:
1, Article 5.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol8/iss1/5