## Facts

- John Humble and Sarah Puffinbarger, a married couple with children from prior relationships, executed nearly identical wills in 1984.
- Each 1984 will left the testator’s estate to the surviving spouse and, after the survivor’s death, directed distribution of the combined estate into seven equal shares among the couple’s descendant lines.
- John died shortly after executing the 1984 will, and his estate passed to Sarah under that plan.
- In 1993, Sarah executed a new will expressly revoking her 1984 will and leaving her estate equally to her two surviving daughters, excluding John’s children and the children of Sarah’s deceased son.
- After Sarah died in 2001, John’s four children sued Sarah’s daughters, claiming the 1984 wills were executed pursuant to a contract restricting Sarah’s ability to change the agreed survivor distribution.
- The plaintiffs sought a constructive trust for the portions they would have received under the 1984 scheme; the children of Sarah’s predeceased son intervened asserting similar rights.
- At summary judgment, the drafting attorney testified that John and Sarah intended “contractual wills” to protect the deceased spouse’s children’s shares, while allowing the survivor some flexibility regarding the survivor’s own descendants.
- The district court admitted the attorney’s testimony, held the 1984 wills contractual, and imposed a constructive trust benefiting John’s children for their promised shares; it rejected the intervenors’ claim.
- Sarah’s daughters and the intervenors appealed; the Kansas Supreme Court took the case on transfer.

## Issues

1. Whether extrinsic evidence is admissible to prove mutual and reciprocal wills were executed pursuant to an agreement between the testators, despite no contractual recital in the wills.
2. Whether a party must first show ambiguity in the will language before a court may admit extrinsic evidence of an agreement relating to the wills.
3. Whether the evidence supported, as a matter of law on summary judgment, a finding that the 1984 wills were contractual and limited the survivor’s power to defeat the agreed shares.
4. Whether a constructive trust was a proper remedy to enforce the contractual arrangement against property passing under the later will.

## Decision

- Affirmed the district court’s summary judgment for John’s children.
- Held extrinsic evidence is admissible to show mutual and reciprocal wills were executed pursuant to an agreement, even if the wills do not reference a contract.
- Held no threshold showing of ambiguity is required before admitting extrinsic evidence of such an agreement.
- Upheld the determination that the 1984 wills were contractual in character based on the will provisions and competent extrinsic evidence, including the drafting attorney’s testimony.
- Approved imposing a constructive trust on Sarah’s estate to prevent beneficiaries under the later will from retaining assets contrary to the contractual arrangement.

## Legal Principles

- Extrinsic evidence (including surrounding circumstances and third-party testimony) may be used to prove that separate mutual and reciprocal wills were executed pursuant to an agreement between the testators.
- Admissibility of extrinsic evidence to prove an agreement related to mutual wills does not depend on a prior finding that the will language is ambiguous.
- Whether a will is “contractual in character” is a question of fact that must be established by competent evidence; mutuality and reciprocity in the instruments, combined with evidence of an agreement, can support that finding.
- A later will revoking a prior will may remain formally effective, but equity may enforce a prior contract relating to the survivor’s disposition by imposing a constructive trust to prevent unjust enrichment.

## Conclusion

The Kansas Supreme Court enforced an agreement underlying mutual, reciprocal wills by permitting extrinsic evidence to prove the contract without any ambiguity requirement and by upholding a constructive trust to protect the deceased spouse’s children from being disinherited by the survivor’s later revoking will.


Garrett v. Read, 278 Kan. 662, 102 P.3d 436 (Kan. 2004)