A joint will, also known as a mutual will, is a single will signed by both spouses which continues to be a valid document, controlling on the surviving spouse after the other spouse dies.
Joint wills are authorized by New York state law. The joint will contains instructions which both spouses declare to be their mutual intent.
The problem with joint wills is the lasting, binding effect upon the surviving spouse. Consider a scenario in which two spouses properly make a joint will.
One spouse later passes away and the surviving spouse remarries. The surviving spouse cannot thereafter execute a new will.
This situation occurred in the case of was Glass v. Battista, 43 N.Y.2d 620, 374 N.E.2d 116 (1978). After the first spouse died, the surviving spouse remarried, and thereafter executed a new will which disinherited his daughters, in contradiction to the joint will.
The New York Court of Appeals held that the new will was in violation of a valid agreement to dispose of the property and refused to honor the new will.
Many people who choose to execute a will are happily married and do not believe that such a situation would affect them. However, it is important to remember a will is intended to make provisions for unseen future events.
Executing a joint will is not recommended because it limits the options available to clients in the future.