Boucher v. bufford


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A case done for Wills, Trusts, and Estate Administration

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Boucher v. bufford

  1. 1. To: Mr. Brian JettFrom: Christopher L HardenDate: 12/15/2012RE: Boucher v. Bufford Issue(1) Whether the joint wills of Mr. and Mrs. Boucher are separable even though both willsexist in the same document and were witnessed as joint wills? (2) Whether the will is validto attempt testamentary disposition? (3) Whether the will can be probated? RuleEpperson v. White, 3 Smith (TN) 155, 299 S.W. 812 (1927). AnalysisEpperson v. White, 3 Smith (TN) 155, 299 S.W. 812 (1927) points out the relative ease andsimplicity of a joint will disposing of property that both testators owned separately becauseupon the death of each testator, his or her will could be treated as a separate dispositionand therefore be entitled to go into probate. In Epperson v. White and Boucher v. Bufford,494 S.W.2d 503 (1971), the testators owned separate property in a joint will where thedisposition of that property was not to take effect until the death of the surviving testator.Epperson v. White stated that “where a joint will is not a disposition by each testator of hisown property separately, but a disposition of separate property treated as a joint fund afterthe death of the survivor, the will cannot be entered into probate so long as either of thetestators is living. Nor in such a case can the estate of the testator dying first be held inabeyance until the death of the survivor for the purpose of then probating the instrumentas the will of both testators, but the estate of the one so dying first must be distributed asintestate estate.” 1
  2. 2. In Boucher v. Bufford, Mrs. Boucher owned the 30-acre tract of land mentioned in thethird paragraph of the will, Mr. Boucher owned the 12 acre tract of land, and both of themowned the 10 acre tract of land in the will.Epperson v. White held that, “It seems impossibleto us, during the life of her husband, to undertake the execution of Mrs. Epperson’s will as aseparate instrument. We do not think that she could have had any such effort incontemplation. An attempt to execute the will separately would result in the defeat of herplainly expressed intentions.” In Boucher v. Bufford, the will clearly indicated that the landwas to be used as an instrument to provide for the continued care of Mr. and Mrs. Boucherin their declining years, and that after the faithful performance of the provision of the willby Harry Boucher, all property bequeathed and devised to Harry Bouchard in the will wouldbe his to do with as he so desired. Unfortunately, as was the case in Epperson v. White, awill of this type where the separate property in a joint will is designed to be probated at thedeath of each testator, this“cannot be done and the will should be refused probatealtogether. “A major questions raised in Epperson v. White was how the first decedent’s estate was tobe settled and disposed of because to delay such actions until the death of the othertestator would make the prompt and orderly settlement of the recently deceased testator’sestate impossible. Either way the will is written, either with the first testator’s propertygoing into probate following his or her death, or all of the property going into probatefollowing the death of both testators, the will fails. Epperson v. White noted that there canbe no such thing as a joint will containing separate property that probates at the death ofeach testator because no such condition is expressly indicated in [Mr. or Mrs. Boucher’s]the will, and in 136 Am. St. Rep.592, 594 it is held that “a joint will conditioned to take effecton the death of all the testators is invalid.”Epperson v. White also held that any attempt todispose of property in a manner or method not sanctioned by statute defeats the intentionsof the will.It is impossible for Mrs. Boucher’s will to go into probate without defeating the provisionmade in the will to take care of Mr. and Mrs. Boucher in their declining years and care for 2
  3. 3. the surviving spouse. As in Epperson v. White, if the will were to go into probate, thebequeathed and devised property would have to take effect as executory devices andbecause vestiture is postponed until the death of the surviving testator, there is no estate todispose of. If there was property to dispose of now and that property went into probate,Epperson v. White indicated that Mrs. Boucher’s heirs would be entitled to enter and holdthe property which would deprive Mr. Boucher use and enjoyment of the property he livedat and relied upon for his continued care. In Boucher v. Bufford and in Epperson v. White,when an executory device is to commence in the future upon some contingency, until thecontingency happens, the fee passes in the usual course of descent to the heirs at law. ConclusionThe will of Mr. and Mrs. Boucher was a joint will containing property that Mr. and Mrs.Boucher owned jointly and severally. To probate the property of Mrs. Boucher’s will for theprompt and orderly settlement of her estate while having had joint and severally ownedproperty is, as Epperson v. White put it, something unknown and not a will. Whether or notthe estate is probated at the death of the first testator or after both testators are deceased,the probate would be executed in a manner contrary with sanctioned statutes. Because thewill fails, Mrs. Boucher is considered to have died intestate and her estate passes in theusual course of descent to the heirs at law, and this includes the disinherited daughter, Mrs.Maxine Boucher Bufford. 3