A case done for Wills, Trusts, and Estate Administration

1. To: Mr. Brian Jett
From: Christopher L Harden
Date: 12/15/2012
RE: Boucher v. Bufford
Issue
(1) Whether the joint wills of Mr. and Mrs. Boucher are separable even though both wills
exist in the same document and were witnessed as joint wills? (2) Whether the will is valid
to attempt testamentary disposition? (3) Whether the will can be probated?
Rule
Epperson v. White, 3 Smith (TN) 155, 299 S.W. 812 (1927).
Analysis
Epperson v. White, 3 Smith (TN) 155, 299 S.W. 812 (1927) points out the relative ease and
simplicity of a joint will disposing of property that both testators owned separately because
upon the death of each testator, his or her will could be treated as a separate disposition
and 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 the
disposition 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 his
own property separately, but a disposition of separate property treated as a joint fund after
the death of the survivor, the will cannot be entered into probate so long as either of the
testators is living. Nor in such a case can the estate of the testator dying first be held in
abeyance until the death of the survivor for the purpose of then probating the instrument
as the will of both testators, but the estate of the one so dying first must be distributed as
intestate estate.”
1

2. In Boucher v. Bufford, Mrs. Boucher owned the 30-acre tract of land mentioned in the
third paragraph of the will, Mr. Boucher owned the 12 acre tract of land, and both of them
owned the 10 acre tract of land in the will.Epperson v. White held that, “It seems impossible
to us, during the life of her husband, to undertake the execution of Mrs. Epperson’s will as a
separate instrument. We do not think that she could have had any such effort in
contemplation. An attempt to execute the will separately would result in the defeat of her
plainly expressed intentions.” In Boucher v. Bufford, the will clearly indicated that the land
was to be used as an instrument to provide for the continued care of Mr. and Mrs. Boucher
in their declining years, and that after the faithful performance of the provision of the will
by Harry Boucher, all property bequeathed and devised to Harry Bouchard in the will would
be his to do with as he so desired. Unfortunately, as was the case in Epperson v. White, a
will of this type where the separate property in a joint will is designed to be probated at the
death of each testator, this“cannot be done and the will should be refused probate
altogether. “
A major questions raised in Epperson v. White was how the first decedent’s estate was to
be settled and disposed of because to delay such actions until the death of the other
testator would make the prompt and orderly settlement of the recently deceased testator’s
estate impossible. Either way the will is written, either with the first testator’s property
going into probate following his or her death, or all of the property going into probate
following the death of both testators, the will fails. Epperson v. White noted that there can
be no such thing as a joint will containing separate property that probates at the death of
each 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 effect
on the death of all the testators is invalid.”Epperson v. White also held that any attempt to
dispose of property in a manner or method not sanctioned by statute defeats the intentions
of the will.
It is impossible for Mrs. Boucher’s will to go into probate without defeating the provision
made in the will to take care of Mr. and Mrs. Boucher in their declining years and care for
2

3. the surviving spouse. As in Epperson v. White, if the will were to go into probate, the
bequeathed and devised property would have to take effect as executory devices and
because vestiture is postponed until the death of the surviving testator, there is no estate to
dispose 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 hold
the property which would deprive Mr. Boucher use and enjoyment of the property he lived
at 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 the
contingency happens, the fee passes in the usual course of descent to the heirs at law.
Conclusion
The 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 the
prompt and orderly settlement of her estate while having had joint and severally owned
property is, as Epperson v. White put it, something unknown and not a will. Whether or not
the 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 the
will fails, Mrs. Boucher is considered to have died intestate and her estate passes in the
usual course of descent to the heirs at law, and this includes the disinherited daughter, Mrs.
Maxine Boucher Bufford.
3