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Promise Not To Change Will Is Enforceable–Trust Also Fails

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Arch and Emily Tucker were a married couple living in Colorado in 1962. That year, they both signed new wills, though Emily’s will could not be found decades later when problems arose. Arch’s will, though, included language reflecting an agreement between the two of them not change their wills. After noting that Emily’s will was similar, Arch’s will provided:

“…the contents and provisions of the said two Last Wills and Testaments shall not be changed and altered by one spouse without the full written knowledge and approval of the other spouse.”

Arch died in 1982, and Emily had his will admitted to probate. Other than a $2,500 bequest to his daughter from a prior marriage, his will left everything to Emily. At the time of his death, however, all of his property was held in joint tenancy with Emily, and so she received everything despite what the will provided.

In the years after Arch’s death, Emily apparently decided that she did not want her estate to go to the family members named in Arch’s (and her) 1962 will. Just two years after Arch’s death, Emily signed a living trust and transferred most of her assets to the trust’s name.

Emily’s new trust provided that upon her death everything would be distributed to a friend, Charles Glenn, and his wife Jean. In 1989 she also signed a new will, leaving her entire estate to the Glenns and naming Charles Glenn as her Personal Representative.

Emily Tucker died in 1994. Her estate (including both probate assets and the holdings in the living trust) was worth about $2.6 million. Charles Glenn submitted her will to probate, and indicated that he intended to distribute the trust assets according to its terms.

Arch and Emily Tucker’s family objected. They filed a court action alleging that Emily was bound by her agreement with Arch, and that she did not have the authority to either make a new will or to transfer her assets into her living trust. They sought to force Charles Glenn to return the entire estate to the family members.

Although Emily Glenn’s 1962 will was apparently lost, a Colorado jury found that it had been executed, and that it must have contained provisions essentially identical to Arch’s will. The jury agreed with family members that Emily could not negate her agreement with Arch (to leave her entire estate to family members) by simply transferring assets into a living trust. The Glenns appealed the ruling ordering them to return all Emily’s assets.

The Colorado Court of Appeals agreed with the jury (and the family). Colorado law (which is very much like Arizona law in this regard) permits two people to agree not to change their wills without one another’s consent, and Emily and Arch had such an agreement. To allow Emily to sidestep that agreement by transferring her assets to a living trust, the Court ruled, would be to defeat the purpose of the agreement.

The Court did note that Emily would have had the power to make “reasonable” gifts during her lifetime. She would also have had the right to use the funds for her own living expenses. But, the Court of Appeals ruled, she did not have the authority to “transfer the bulk of the estate in a way contrary to the terms of the agreement embodied in the mutual will.” Murphy v. Glenn, March 5, 1998.

Colorado, like most states, permits two people to agree that they will make a will, or that they will not make a will, or that they will not change an existing will. As in most states, Colorado requires that the agreement be written, and it must meet the requirements of a will itself. Those requirements may call for two (or more) witnesses and specific language to make the agreement effective. Once the rules are met, however, neither party is free to change the outcome after the first party dies.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.