## Facts

- Margaret Morris died on April 1, 1975.
- Her husband, Henry M. Morris, survived her and offered Margaret’s November 19, 1965 will for probate.
- The probate court admitted the 1965 will and issued letters testamentary to Henry; the 1965 will left Margaret’s property to Henry.
- Margaret had also executed a later will dated March 22, 1968.
- The 1968 will expressly revoked all prior wills, left Henry one dollar, and left the residue to Margaret’s children, Becky Jean Whitaker and Henry Lee Morris.
- Becky Jean and Henry Lee agreed not to probate the 1968 will because they feared it would upset Henry.
- Becky Jean later offered the 1968 will for probate anyway.
- Henry contested probate of the 1968 will and argued that the agreement not to probate it—without any stated alternate plan for distribution—necessarily meant the estate should be distributed under the 1965 will.
- A jury found the non-probate agreement was made so Henry would not be upset, but that it did not cover how the estate would be distributed in place of the 1968 will.
- The trial court determined the 1968 will was proved as required by law and set aside the prior probate of the 1965 will.
- Despite recognizing the 1968 will as proved, the trial court declined to grant letters testamentary to Becky Jean and instead decreed the estate would pass under the laws of intestacy.
- Both Henry and Becky Jean appealed.

## Issues

1. Whether an agreement among beneficiaries not to probate a later will—made to avoid upsetting the surviving spouse and containing no terms on distribution—creates an implied and enforceable agreement to distribute the estate under an earlier will.
2. After finding a later will is proved as required by law and revokes prior wills, whether a probate court may refuse to administer the estate under that will and instead order distribution by intestacy.

## Decision

- The court rejected Henry’s claim that the non-probate agreement implied, as a matter of law, an agreement to distribute the estate under the 1965 will.
- The court upheld the determination that the 1968 will was proved as required by law and that the earlier probate of the 1965 will should be set aside.
- The court held the estate could not be treated as intestate merely because the parties once agreed not to probate the 1968 will, where the jury found no agreement on substitute distribution.
- The court reversed the portion of the judgment ordering intestate distribution and refusing to administer under the 1968 will, and remanded for administration consistent with the 1968 will.

## Legal Principles

- A later will that is duly proved and that revokes prior wills displaces earlier wills for purposes of estate administration.
- Intestate succession applies only when there is no operative will admitted to probate; it is not a fallback when a later will has been proved and found effective.
- An agreement not to probate a will, without definite and proven terms on how the estate will be distributed instead, does not amount to a binding contract to distribute under a different will.
- Where the factfinder determines the parties made no agreement about distribution, a court may not supply a distribution term to defeat a proved will.

## Conclusion

The appellate court enforced the controlling effect of Margaret’s later proved 1968 will: the children’s agreement not to probate it, made only to avoid upsetting Henry and lacking any distribution terms, did not create an implied contract to distribute under the 1965 will, and the trial court erred by sending the estate through intestacy after finding the 1968 will was proved and revoking prior wills.


In re Morris, 577 S.W.2d 748 (1979)