I was reading an article about Hetty Green and it mentions her challenging a will on the basis that there was an earlier will with a clause invalidating any later wills.

Is such a clause enforceable, say in USA jurisdiction? Of course, glad to have comments from other nations as well. Will be interesting to compare.

  • I haven't researched about Hetty Green's case, but in general this is not allowed per se, i.e. "all later wills are invalid." alone wouldn't be enforced. But mutual wills are common and can be mutable only upon mutual consent (thus irrevocable after one party's death). Of course, claims can also arise from contracts made by the deceased and be made against the estate, even if the will doesn't mention them.
    – xngtng
    Mar 14, 2021 at 21:27
  • in germany, you can make an Erbvertrag, that is ranked higher than a will and would break any will made after. It's.... complicated.
    – Trish
    Mar 14, 2021 at 23:37

1 Answer 1


In Robinson v. Mandell, the authenticity of a mutual will was in question.

Hetty Green (Robinson) claimed that her aunt (Howland) intended to disinherit the father of Robinson and requested that they were both to make a will, so that in case Howland predeceased Robinson but Robinson predeceased her father, the latter would not obtain anything derived from Howland's estate via Robinson.

At the centre of the case is the allegation that

it was at the same time mutually agreed between the parties that the respective wills, so to be made, were to be exchanged, and that each was to have possession of the will of the other, and that neither was to make any other will without notifying the other, and returning the other's will so to be held in exchange.

This is essentially a contract between (at the time) two living persons, and at least at the time, generally enforceable unless there exist motives to nullify the contract. Of course, the parties can also revoke the contracts according to the rules in the contract or provided by statutes.

The court made the following observation (among others):

Where two persons agree each with the other to make mutual wills, and both execute the agreement, it is held that neither can properly revoke his will without giving notice to the other of such revocation. The death of one of the parties in such a case carries his part of the contract into execution, and the better opinion perhaps is, that the other party, after that event, if the agreement was definite and satisfactory, cannot rescind the contract.

The particular contract here would be irrevocably executed by one party due to her death and the contract is definitive and cannot be changed.

However, in this case, it was decided against Robinson because the existence of the mutual will was not proved.

By contrast, a traditional will is a unilateral declaration made by the testator, who in general cannot bind their future self from making another legally valid decision overriding the previous will, unless another party's interests are adversely impacted under certain conditions (e.g. under proprietary estoppel) or the law provides otherwise in that jurisdiction.

Nowadays in Massachusetts, the statutes provide for methods to revoke a will as well as contracts regarding the making or non-making of a will that could make certain wills irrevocable.

Section 2–507. [Revocation by Writing or by Act.]

(a) A will or any part thereof is revoked:

(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or

(2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, ''revocatory act on the will'' includes burning, tearing, canceling, obliterating, or destroying the will or any part of it.

(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted, the previous will is revoked; only the subsequent will is operative on the testator's death.

(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.

Section 2–514. [Contracts Concerning Succession.]

A contract to make or not to make a will or devise, or to revoke or not to revoke a will or devise, or to die intestate, if executed after the effective date of this article, may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills shall not create a presumption of a contract not to revoke the will or wills.

  • Good answer. It covers all of the relevant points.
    – ohwilleke
    Mar 16, 2021 at 2:25

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