We have many clients asking to make a “joint will” or a “mutual will” without realising the differences between each, and the implications. Most often the intention is to ensure that both parties are bound to the agreed terms of the will, but that is not always the case.
What Is A Joint Will?
A joint will exists where two or more persons execute the same document as the will of both or all of them. Joint wills are rarely made in practice; they operate as the separate will of each testator, and may be revoked or varied by either of the testators so far as it applies to him, whether the other person is alive or whether he consents.
Mutual wills on the other hand, are made where mutual testators agree to dispose of their property and agree not to revoke the wills. There must be evidence of the agreement not to revoke, by either a relevant statement in the will or external evidence.
Comparably, wills that are made purely on the same terms (termed a “mirror will”, e.g. where both spouses leave everything to each other in the first instance and then to the children) are not mutual wills on the basis that there was no agreement not to revoke the wills.
Mutual wills can be separate or joint wills, but three things must be established:
An agreement between two or more persons executing the wills, who more often than not also make provision for each other.
Agreement that the survivor will be bound.
Occurrence of the binding event.
If the three requirements are met, a constructive trust is imposed and the surviving testator effectively becomes a trustee over the subject matter covered by the agreement.
Problems With Mutual Wills?
Mutual wills do not come without their problems. Firstly, what if the surviving spouse has further children whom they cannot provide for later in life, because they are bound by the terms of their mutual will?
Secondly, there is no real duty on the survivor to account for property received from the estate of the first to die. If a mutual will is desired, it should be clearly stated as to when the trust arises, as to which property the trust attaches, and it should be clearly stated that the wills are intended to be mutual wills and irrevocable.
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