## Facts

- Thaddeus Evans Gilliam and Emma Jean Gilliam married later in life; each had children from prior marriages, and they had no children together.
- In 1974, each spouse executed a separate will that left the estate to the other spouse, and if the other spouse did not survive, to all five children in equal shares.
- Thaddeus died in January 1985.
- About one week after Thaddeus’s death, Emma executed a new will leaving her entire estate to her three children and excluding Thaddeus’s children.
- After Emma’s death, her 1985 will was admitted to probate.
- Thaddeus’s children sued, alleging the 1974 wills were made pursuant to a binding agreement that neither spouse would revoke the plan after the first death; their proof primarily consisted of the reciprocal wills and testimony that the couple said they had “traded wills.”

## Issues

1. Whether the evidence proved, by the required standard, an enforceable contract between spouses not to revoke their mutual/reciprocal 1974 wills.
2. Whether, absent such proof, the surviving spouse could revoke the earlier will and dispose of her estate under a later inconsistent will.
3. What procedural avenues are available to enforce an alleged contract not to revoke a prior will.

## Decision

- The Tennessee Supreme Court affirmed the lower courts.
- The court held the evidence did not establish an enforceable contract not to revoke the 1974 wills.
- Because no contract was proven, Emma retained the right to revoke her 1974 will and execute the 1985 will.
- Emma’s 1985 will properly governed distribution of her estate.

## Legal Principles

- Mutual or reciprocal wills, standing alone, do not prove a contract not to revoke or a waiver of testamentary revocability.
- A contract to make a will or not to revoke a will must be proven by clear, cogent, and convincing evidence showing a definite agreement and intent to be bound.
- Courts require strict proof of such contracts due to the risk of fraud and perjury in post-death claims based on alleged oral understandings.
- A claim for breach of a contract not to revoke a prior will may be pursued as (1) a claim against the estate, (2) an action for specific performance (often in equity), or (3) a claim asserted within a will contest.

## Conclusion

The court refused to infer an irrevocable mutual-wills contract from reciprocal instruments and vague testimony, and it upheld the surviving spouse’s later will because the challengers failed to prove a binding agreement not to revoke by clear and convincing evidence.


Junot v. Est. of Gilliam, 759 S.W.2d 654 (Tenn. 1988)