Mutual wills are made by 2 people (each referred to below as a will-maker), usually couples, who agree to make their respective wills on terms that on the death of one will-maker, the survivor will-maker does not revoke or alter their will.
In other words, the survivor will-maker is bound by the terms of the will they duly executed at the same time as the deceased will-maker duly executed their will.
The essence of mutual wills is a contractually binding agreement, like any normal contract entered into between 2 parties (we refer to as the Mutual Will Agreement, or MWA). The MWA is usually in writing with the mutual wills of the contracting parties annexed.
However, the MWA may also be an oral agreement, according to mutual promises made by the will- makers during their lifetime, on terms proven in a court of equity.
For mutual wills to be upheld at law, the following requirements must be met:
Mutual wills cannot prevent a family provision claim being made against the estate of a mutual will-maker.
For example, a child of a will-maker’s first marriage may make an application to court for provision out of their deceased’s parent’s estate despite the deceased parent making a mutual will with their widow/widower from a second marriage. As mutual wills are based on an agreement between the parties, the agreement can be undone if there are elements giving rise to rescission such as: undue influence, unconscionability, misrepresentation.
So for example, if parties have entered into an agreement to make mutual wills and one party has misrepresented the extent of their estate, the other party may have rights to have the MWA set aside.
Mutual wills are part of the toolkit of an estate planning lawyer. However, they would only likely be used in a limited set of circumstances.
For example, a couple (first married) with children who want certainty that their children will inherit from the survivor of them may want to have mutual wills instead of mirror wills. A mirror will simply means a will made by each parent which mirrors the other (eg Husband’s will: Estate to wife, then to children. Wife’s will: Estate of Husband then to children).
However, the survivor of the couple may wish to change the terms of the mirror will. This may be due to the survivor re-marrying or re-partnering with someone else. The survivor may wish to change their mirror will to make a bequest or provide a legacy for a person or organization that was not in the minds of the couple when they made their mirror wills.
In such circumstances, the mutual will provides the level of comfort and certainty that the couple envisaged as part of their estate plan.
If a surviving party to a MWA breaches the terms of the MWA, the application brought against the surviving party is one based on the MWA, not the mutual will itself (although it may be annexed to the MWA).
Such an application would typically be brought by a person who has an interest in the property that is the subject matter of the obligation imposed on the surviving party under the mutual will (eg the mutual wills make provision for a child of the mutual will-makers by way of an interest in the property occupied by the survivor).
The situation becomes less clear when the allegation is of a suspected or potential breach of the MWA.
Can an application be made to court to prevent the suspect breach, or alternatively to preserve the estate from diminution ?
In Forster v Forster [2022] QSC 30, an application was made by a beneficiary of mutual wills made by the beneficiary’s father and step mother. The beneficiary asked the court to make orders that his step mother as trustee of his father’s estate provide details of her financial position to him up until her death.
Such details would likely have included the financial details of assets held by the step mother under her mutual will.
The court held [at sub paragraphs 201 (i), (j)]:
In summary, the court will only intervene if there is clear fraud, in the sense that the step mother had changed her mutual will, or dealt with assets gifted to her under the deceased’s mutual will in a manner that is inconsistent with the terms of her mutual will.
Getting legal advice when making your will, or mutual wills, is important to ensure your estate is properly dealt with in accordance with your wishes as well as to avoid or minimize potential claims against your estate.
We can assist you in preparing your estate plan including advice ion mutual wills.
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