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.”

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

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.