## Facts

- Karl Waks and his wife, Belle Waks, were married and had no children.
- On February 4, 1975, Karl and Belle contemporaneously executed (1) a written agreement and (2) a joint will.
- The agreement stated that its purpose was to permit each spouse, after death, to make “successive bequests” from their jointly owned property to relatives and other named beneficiaries.
- In the agreement, each spouse promised not to alter, amend, or revoke the joint will without the other’s written consent during both lives, and not to revoke it at all after the death of the first spouse.
- The joint will included provisions for certain real property (a condominium and furnishings), but the dispute on appeal focused on jointly owned personal property.
- As to jointly owned personal property—specifically jointly owned securities and savings and checking accounts—the joint will directed that the property be divided into two equal parts upon the first spouse’s death: one half to the survivor and one half to beneficiaries designated by the spouse who died first.
- Karl died on January 21, 1978, leaving Belle as the surviving spouse.
- After Karl’s death, Anneliese Levine, the personal representative of Karl’s estate, demanded that Belle surrender one-half of the jointly owned securities and bank accounts so Karl’s beneficiaries could receive the portion directed by the agreement and joint will.
- Belle refused and raised affirmative defenses, including undue influence, fraud, and nondisclosure of assets, and claimed she did not understand the effect of the documents.
- The probate court denied the personal representative’s petition, reasoning that (1) only Karl’s “portion” of the joint will was then operative and (2) the agreement was not controlling because the parties continued to hold the securities and accounts in joint tenancy form after executing the agreement and joint will.
- The personal representative appealed to the Florida Fourth District Court of Appeal.

## Issues

1. Whether the contemporaneously executed agreement and joint will, which required a 50/50 division of jointly owned securities and bank accounts at the first death and restricted revocation, prevented the surviving joint tenant from taking the entire property by right of survivorship.
2. Whether the probate court erred by treating the form of title as controlling and disregarding enforcement of the spouses’ agreement and joint will.

## Decision

- The appellate court reversed the order denying the petition and remanded for enforcement consistent with its opinion.
- The court held that the agreement and joint will were enforceable as a contract governing disposition of the jointly owned securities and bank accounts.
- The court concluded that the spouses’ plan—half to the survivor and half to the first decedent’s beneficiaries—was inconsistent with full survivorship and could not be defeated simply because the assets remained titled in joint names at death.
- The court directed that Belle could be required to surrender the portion of the jointly owned personal property necessary to carry out the agreed division and distribution.
- The court rejected the trial court’s approach that the contract was irrelevant and that only Karl’s “half” of the joint will mattered while Belle lived; the enforceable obligation arose from the spouses’ agreement coupled with the will’s distribution plan.

## Legal Principles

- A joint will executed pursuant to a contemporaneous agreement not to revoke can be enforced as a binding contract between the testators.
- When spouses contract for a post-death distribution of jointly held property that gives third parties an interest in what would otherwise pass by survivorship, equity will enforce the bargain and will not allow the survivor to claim the whole solely based on joint-title form.
- A court may compel the survivor to transfer or surrender the portion of jointly held personal property required to satisfy the contract and effect the agreed distribution to the first decedent’s beneficiaries.
- A probate court errs when it treats survivorship title as dispositive while ignoring an enforceable agreement and joint will that set a different division of the same property.

## Conclusion

In re Estate of Waks holds that spouses who sign a binding agreement and joint will providing that jointly owned securities and bank accounts will be split at the first death—half to the survivor and half to the first decedent’s beneficiaries—cannot have that plan defeated by the survivorship feature of joint title. The Fourth District reversed the probate court’s refusal to enforce the arrangement and required enforcement of the agreed division of the jointly owned personal property.


In re Estate of Waks, 386 So. 2d 307 (1980)