Gregory v. Estate of Gregory

H. T. Gregory executed irrevocable mutual wills with his first wife, Gladys Gregory, in 1964. These wills provided that if one spouse predeceased the other spouse, then the surviving spouse would receive the deceased spouse’s estate, and when the surviving spouse died, the surviving spouse’s estate would then pass to their six children as third-party beneficiaries. In order for the wills to be modified, the consent of the third-party beneficiaries was required. Gladys died first, and her estate passed to H. T. pursuant to her will. H. T. married Genevive Gregory (plaintiff) after Gladys’s death. In 1979 H. T. executed a codicil to his 1964 will, giving Genevive a life estate in the marital home. H. T.’s six children consented to the codicil. H. T. died in 1990. All six of his children, as well as Genevive, survived him. Genevive filed an Election of Surviving Spouse seeking dower and homestead interests and her statutory allowances in H. T.’s estate (defendant), and she later sought a distribution from H. T.’s estate. Genevive also argued that any property acquired during her marriage to H. T. should not be subject to the mutual wills, though she presented no evidence to establish that such property had not been derived from property owned by H. T. and Gladys. Following a hearing, the probate court held that the interests of the beneficiaries of the 1964 mutual wills—the six children—superseded the right of a surviving spouse to take an elective share, and Genevive also did not have a right to the property acquired during her marriage to H. T. Genevive appealed.