Rigby v.  Powell, 233 Ga. 158, 210 S.E.2d 696 (1974)
Author: Anonymous

Facts: Appellant, Ralph Rigby and Doris Wynn were married in 1957 and remained together until her death in 1971.  Both had children from previous marriages and the Appellees are two of decedent’s children by a previous marriage. Prior to executing their mutual wills, Rigby and Wynn agreed to leave all of their estate to the other.  Ms. Wynn secretly violated the terms of their agreement and executed a different will leaving her estate to her husband, but if he died or remarried, that legacy reverted to her children.  Appellant remarried on year later and her children notified the Appellant to vacate under the terms of the will. 

Issue: Whether the allegation in the Petitioner’s complaint and affidavit establish the existence of material facts (that the parties had an agreement to make a will or devise)?

Holding: There are issues of material fact, it was err to grant motion to dismiss and summary.

Procedure: Probate Ct entered an order admitting Wynn’s will and issued testamentary letters to the executor providing that Rigby was a legatee devised an interest to real property, until death or remarriage, and fee simple title to other property.  Appellant filed petition in Superior Ct asserting the will was void and inoperative.  Appellees filed timely pleadings, motion for dismissal and summary.  Tr. Ct. granting appellee motion to dismiss and summary; Pet. Appeals.   Judgment Reversed.

Rule: Where mutual wills are the result of a contract based on valid consideration, and where after the death of one of the parties the survivor has accepted benefits under the will of the other that was executed pursuant to an agreement, equity will, where the facts are fully proven, interpose to prevent fraud, and will compel the execution of such agreement by the survivor.

Rationale: The will of Wynn cannot be declared void b/c a judgment entered in Probate Ct is not subject to collateral attack by any other court.  A K to make a will, for valuable consideration, is valid and if breached can be enforced against the estate.  The aggrieved may recover Q.M. or for damages, or specific performance, with tracing of funds, whichever is appropriate.  Such a K must be definite, certain, and precise in its terms and its existence must be established beyond a reasonable doubt.  The terms of the K btwn the deceased and the ANT, as shown by affidavit and complaint, the they agreed to execute mutual wills leaving each other their real property.  ANT purchased several parcels of real estate and caused the title to be placed in his wife’s name in keeping with the terms.  It was not until after her death that he learned of her breach. 

The wife obtained the benefit of the possibility of taking under the ANT’s will during her lifetime, which remained unrevoked.  Property was placed in her name.  Therefore, sufficient consideration existed for a K to make a mutual will existed, and thus made an issue of material fact as to the right of the ANT for equitable relief.