Mutual wills arise when two parties sign Wills to achieve a particular distribution of their estates and they make an agreement not to change the terms of those Wills without the consent of the other. This agreement is meant to survive the death of the one of the parties. This means that the surviving party cannot change his or her Will to defeat the parties’ original intentions. By way of an example, a couple in a second marriage, each with children from a prior relationship, may agree to sign mutual wills leaving their estates to each other and then equally to all of their combined children upon the death of the survivor.
Mutual wills can be differentiated from mirror wills. Mirror wills arise when two parties sign Wills whose terms are basically the same. As such, the Wills are said to ‘mirror’ each other. Unlike mutual wills, however, each party is free to change the terms of his or her own Will at any time without having to seek the consent of the other party. The majority of couples sign mirror wills.
Mutual Wills Agreement
If there is an intention to sign mutual Wills, the parties should enter into a formal, written agreement setting out their common intentions regarding the distribution of their estates. To ensure it could withstand a legal challenge, this agreement should meet all of the formalities of a domestic agreement. This includes full financial disclosure by both parties as well as both parties having the opportunity to seek independent legal advice. It is also important that the agreement list exactly what property the mutual wills is intended to cover.
The laws surrounding mutual wills has developed in the cases that have come before the courts. Interestingly, in some cases over the past decade, there have been occasions where the court found mutual wills to exist even where a written agreement had not been signed. Rather, the court relied upon statements supposedly made by the parties as evidence of their intention to execute mutual wills. In such cases, the executor is found to hold the estate in trust for the original, common beneficiaries.
If you intend to execute mutual wills, seek the advice of a qualified professional with experience in this area. The result of not doing so can be costly and time-consuming litigation