Ask a Lawyer – “What is a mutual will and why would I want one?”

It is common for spouses to make “mirror” wills, leaving their property to each other, with the provision that the property will go to agreed-upon beneficiaries (such as the children) after both pass away. However, nothing legally prevents one of the spouses from secretly changing their will – before or after the other spouse’s death – in a way inconsistent with the agreement. These concerns can be particularly pressing for a spouse who has children from a previous relationship and who wants to make sure that the surviving step-parent would not disinherit those children. And even when family dynamics are entirely positive, a remarriage of the surviving spouse can disrupt estate planning: a will is automatically revoked by marriage, and the remarried spouse may simply forget to draft a new will to revive the terms agreed upon with the previous deceased spouse.

For all such reasons, some couples want wills that can be changed or revoked only with the knowledge and approval of both spouses. This can be accomplished by so-called “mutual wills”. Essentially, mutual wills are a set of two wills with terms that mirror each other, and which contain clauses stating that the wills cannot be revoked or changed without the consent of both spouses. The non-revocation provisions are considered by law to be a binding contract. If a spouse secretly changes their will in breach of the contract, the beneficiaries under the old will would be able to sue the beneficiaries under the new will and obtain the property they were entitled to under the mutual will. A mutual will survives even when an ordinary will would be revoked by operation of law – e.g. automatic revocation by marriage.

A mutual will can thus provide you with confidence that the estate planning arrangements you make with your spouse will endure after you pass away. It ensures that the people you want to take care of in your wills will be taken care of, while at the same time allowing your spouse to be the owner of the family property while they live. To learn more about mutual wills, or for any other will and estate planning inquiries, please contact us.