Many people are proactive when it comes to their estate planning matters, and make sure that they have a current and valid will which documents their intentions upon their passing.
Couples who are in a relationship and who have children often choose to have their wills drafted to leave everything to each other, and if they do not survive each other, then to their children. This is generally termed a mirror will.
Essentially what this means is that the survivor of them receives everything if one person dies, and then when the second person dies the children will share equally whatever is left of the parent’s estate.
However, an aspect of this which is often overlooked or not even contemplated, is that the surviving parent is free to change their will at any time, and if they do so, they may choose not to leave any of the estate to the children upon their passing, leaving the children without any of either parents estate.
This area also becomes further complicated if the surviving parent were to enter into a new relationship (whether or not their new partner has their own children or not) thereby creating a blended family. If they then choose to have a new will drafted leaving their estate to their new partner, the children may also be left without any of either parents’ estate if the surviving parent were to pass away.
Often, parties who get their wills drafted in the aforementioned manner are under a mistaken assumption that those wills are somewhat set in stone and cannot be changed. However this is not the case with mirror wills.
It is important that people are aware that a person is generally free to change their will at any time that they like (subject to their testamentary capacity and the absence of any other vitiating factors such as undue influence or duress etc) and there is no requirement that they inform anyone else that they have done so. However, if parties have entered into mutual wills, the process to have a will changed is restricted and generally can only be changed or revoked by agreement.
Our Gold Coast Wills & Estate lawyers have had several clients express surprise upon learning the distinction between the two, and so this article has been drafted to illuminate the difference between mirror wills and mutual wills.
WHAT IS A MUTUAL WILL
As noted above, a mutual will is not a mirror will. A mirror will is a will which has reciprocal or mirror like terms whereas a mutual will is a legally binding contract between you and your partner.
Although Mirror Wills may be Mutual Wills, there needs to be a specific agreement that the terms of the Wills are to be binding on the parties.
A feature of a mutual wills contract will be an express or implied covenant not to revoke or change the will after the death or incapacity of a contracting party. While both parties are alive and have capacity, the wills may only be changed or revoked by agreement.
HOW DO THEY WORK
After one spouse dies, the survivor is bound by the terms of the mutual will agreement to dispose of his or her assets as agreed with the deceased. Although the survivor cannot be physically prevented from changing his or her will a mutual will intends to create a legally binding contract which may continue to bind your Estate (and your assets) even after your death.
In the case of a breach of a mutual wills contract, a person who is a party to a mutual wills contract may rely on the contract to obtain damages or specific performance.
An aggrieved beneficiary who is not a party to the mutual wills contract can arguably not rely on the contract itself because they are not a party to the contract. However, on the death of a party to a mutual wills contract, equity will recognise a constructive trust over the assets the subject of the mutual wills contract and afford an aggrieved beneficiary an enforceable right in this way.
ADVANTAGES AND DISADVANTAGES OF MUTUAL WILLS
An advantage of mutual wills contracts is that they enable both parties to the contract to have a say in who will ultimately be entitled to assets which may not pass into the estate of each individual, such as jointly held assets and assets held by one party only.
Further, implementing mutual wills potentially enables a testator to provide benefits for a current spouse while preserving assets for children from a previous relationship.
On the other hand, if the survivor wishes to defeat the mutual wills contract, he or she may be able to do so by dissipating the assets the subject of the agreement.
In addition, due to the passage of time and changing circumstances of the surviving party, the courts may not uphold the mutual will or render it void due to uncertainty. This may occur by way of example if the survivor enters into a de-facto relationship or an event occurs that was not in contemplation at the time of the mutual will agreement, such as, a beneficiary engages in serious disentitling conduct.
Further, in order to be effective in a situation where the survivor does not leave a will in the terms required by the mutual wills contract, it is left up to the intended beneficiaries of the mutual wills contract to:
(a) be aware of the existence of the mutual wills contract;
(b) be aware of the terms of the mutual wills contract;
(c) be aware of the nature of the constructive trust; and
(d) take action to enforce the agreement/constructive trust.
In other words, if the intended beneficiaries are not aware of the existence of the mutual wills contract, do not understand its purpose or do not wish to act to enforce it then it may result in the deceased’s wishes not being carried into effect.
Unless there are specific reasons that you require a mutual will to be drafted, our experienced and professional solicitors can advise you on the various other avenues and options available to you to ensure that your children are appropriately protected in the event of your death without having the added expense and complications of having a mutual will drafted.
At Affinity Lawyers, we do not have a one size fits all estate planning solution. Each individual client has their own specific needs and requirements, and their own set of circumstances, and what is right for one client will almost certainly not be right for another client.
We tailor your estate planning documents to your particular needs, taking into account all of your individual circumstances and requirements to ensure that your testamentary intentions are accurately documented and you are fully appraised of the options available to you.
To discuss your individual estate planning needs or if you require assistance in the administration of an Estate, please do not hesitate to contact our Gold Coast team on (07) 5563 8970 or email us at firstname.lastname@example.org.