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If as part of a will contests, you enter into a family settlement agreement, can you appeal the settlement if you become dissatisfied? The Dallas court of appeals has recently written on this issue and has determined that if you accepted benefits under the settlement agreement, you cannot appeal. The case involved the probate of a will by the life partner of the testator. The will left everything to the life partner. The siblings of the testator filed a will contest. The parties decided to settle and entered into a family settlement agreement which was dictated into the record in open court. The siblings accepted benefits under the agreement including possession of a car. Thereafter, when the family settlement agreement was reduced to writing, one of the siblings refused to sign it. The other sibling and the life partner asked the court to enter an order approving the family settlement agreement and authorizing the distribution of the estate. The court did do that. The sibling that was not satisfied, appealed. The Dallas court of appeals dismissed the appeal. The court said that when you enter into a family settlement agreement and accept benefits, you cannot appeal the court ruling. The court pointed out that there two exceptions to that rule neither of which applied in this case. The first exception was where the party appealing would have received the same benefit had there been no family settlement agreement. That exception didn't apply in this case because the will left everything to life partner, therefore, the sibling would not have received anything if the will had been admitted to probate. The second exception is where a party has to enter into the settlement agreement because of financial duress. The court said that there was no evidence of financial duress in this case and dismissed the appeal. 05-06-01109.
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 This question usually comes up when a husband and wife make their wills at the same time. A contractual will is different from a joint will. A joint will is just one document that has the testamentary wishes of two people. It is not contractual.
A contractual will can be established only by the provisions of the will itself, or the provisions of a binding and enforceable written agreement. The mere fact that the testators signed a joint will, or that they frequently used the pronouns we, us and our does not establish the fact that the will was executed pursuant to an agreement to make a mutual will. A mutual or contractual will is one executed pursuant to an agreement between the testators to dispose of all their property in a particular manner, each in consideration of the other. Texas courts view claims of contractual wills cautiously. Contractual wills can be established only by full and satisfactory proof, and no presumptions or inferences are indulged in favor of them. To establish that a will is contractual, a two-prong test must be met. - First. the property at issue must not be conveyed to the survivor as an absolute and unconditional gift.
- Second, the remainder of the estate of the first to die and the estate of the last to die are treated as a single estate following the death of the survivor, which is jointly disposed of by both testators in the secondary dispositive provisions of the will.
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Read more about contractual wills
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Texas recognizes what are called “family settlement agreements.” A family settlement agreement will be enforced by a court even if the distribution of the assets under the agreement differ from the distribution of the assets under the will. A family settlement agreement is an alternative method of administration in Texas that is a favorite of the law. Family settlement agreements may come about when the will does not treat the testator’s children equally but all of the children want to divide the estate equally. This happens when a parent and a child are estranged at the time of the execution of the will. The family may want most of the estate to go to a less fortunate sibling who is not doing as well financially as the others. There may also be tax reasons to enter into a family settlement agreement. Family settlement agreements may also be used to settle will contest cases. To be enforceable, the family settlement agreement must: - be agreed to by all of the heirs and beneficiaries;
- provide that a purported will shall not be probated; and,
- provide for a plan of distribution of the estate to replace the one in the will.
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