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Mutual Wills
Are mutual wills a good idea?

Are Mutual Wills a Good Idea?

We have written and posted on our blog and social media about the importance of having an up-to-date legal Last Will. An estate plan (such as testamentary and inter vivos trusts, etc.) can help ensure that your assets are distributed efficiently after you pass. Absent a valid Last Will, the law of intestacy applies, which can be messy and is often contrary to what some may expect.

It is not uncommon for a married couple to create their individual wills at the same time. This is known as a “mirror image will”, where their wishes are identical in all respects to each other’s. Often there are no secrets between the partners regarding assets, and the two naturally intend to leave their inheritance to each other without a second thought.

Yet with a mirror will, when one spouse survives the other, the surviving spouse can easily change their wishes later in widowhood. This may result in the surviving spousing amending their Last Will to include or exclude individuals, which may cause fights and division between prior and existing beneficiaries. There is, however, another method of will drafting that locks spouses to their shared wishes even after they pass away.

What is a Mutual Will?

Mutual wills are similar to mirror wills, however, embedded within the Last Will document itself is language which specifies an agreement that neither spouse will alter their will, even after the other’s death.

The “written agreement” portion of a Mutual Will specifies that neither testator will, after the death of one party, create a new Last Will or it may indicate that neither are able to dispose of property in a manner that is contrary or inconsistent with the terms of the written agreement. Like all contracts, this type of agreement cannot be modified or terminated without the consent of both parties (which is clearly impossible to obtain after one of the testators has died). In this way, the Mutual Will serves as a binding contract to confirm that your wishes are carried out as you desired.

The case law has stated that, in order to be valid, Mutual Wills needs to meet three conditions. They each must, reciprocally,

  • satisfy the requirements for a binding contract;
  • be proven by clear and satisfactory evidence; and
  • include an agreement not to revoke the Wills.

Mutual Wills can often be a useful tool in second marriages. When both spouses have children from their previous relationships and want to make sure that their own biological children are properly protected if they pass first, a Mutual Will ensures that those children are not later cut out of a surviving spouse’s will.

The challenge that most people struggle with is the idea of ‘locking in’ your will. Yes, there are long marriages, but some couples separate, and some marriages change over time.  We know that marriage is not legally a ‘forever’ commitment, so some clients may question whether they want their wills to have that level of certainty. 

Can a Mutual Will work well?

The challenge ultimately with a Mutual Will is acknowledging that creating a Mutual Will may, in certain circumstances, create conflict. None of us have a crystal ball, and none of us can accurately predict the future. The tragic reality is that one may lose their partner sooner than expected and they could eventually decide to remarry. A Mutual Will ensures that our obligations to our first partner survive long after that marriage.

What happens when family members are concerned that the surviving spouse isn’t holding up their end of the bargain?  In those instances, courts can step in and create what is known as a constructive trust, which holds the portion of the estate in trust for those set out in the Mutual Will. For example, if a husband remarries after his wife’s passing, and attempts to cut her children from the first marriage out of her will, a court can step in and set up a trust to grant them their portion of her estate.

Final Thoughts

Mutual Wills are often used for couples who both have children from previous marriages. However, whether a Mutual Will is appropriate in your circumstances is something you should discuss frankly with your partner, while also considering the consequences.  Couples should be mindful that life requirements may change in the surviving partner’s golden years and imposing restrictions on that partner’s ability to use and dispose of property could have a detrimental affect on their lifestyle and livelihood.  

Ultimately wills can be complicated, but we try and help make them simple. Our team of estate lawyers work with those in all stages of life throughout the Cambridge, Kitchener, and Waterloo region. Your last wishes are important; let us make sure that they’re clearly expressed and kept up to date. Contact us today to set up a consultation.