Imagine that you have been married for over fifty years. Now well into his nineties, your spouse’s heath is frail. You both got your wills done 20 years ago to cover all eventualities. One day your spouse’s health takes a turn for the worst and shortly after he passes away. The family gathers to prepare for the funeral as well as other finalities that must be dealt with. Your three children begin to raise the topic of who will be getting what assets from the estate. Your son, Jack has been estranged from you for over thirty years and has returned once he heard of his father’s passing. Your late husband was always close with Jack, regardless of the fact that Jack refused to speak to you. Jack mentions to you that his father sent him a letter telling him he would be the sole beneficiary of the estate. You remember getting mirror wills stating that if your husband dies you would inherit all the assets of the estate and visa vera if you were to die first. The lawyer informs you that your husband revoked his will two years ago leaving all the assets to Jack and that Jack would be responsible for your allowance for living expenses. You had no knowledge of this and you husband had not mentioned this to you, as he knew you would not approve. How can this be? Didn’t your husband need your consent to do such a thing?
People often do not realize that Mirror wills are simply two wills that mirror one another, often being identical except for beneficiary or beneficiaries. Mirror wills are usually made by spouses and contain reciprocal terms. Most often, the wills say something to the effect of ‘everything to my spouse, if he or she should predecease me, then to my children’. The mistake that is often made is that people assume that once mirror wills are made a spouse cannot change or revoke their will without the consent of the other spouse. This simply is not true. There is nothing preventing one spouse from changing or revoking their will while the other spouse is still alive or once their spouse dies. They do not need to get consent from their spouse.
Mutual wills solve this issue. Mutual wills contain two conditions: (1) a mutual agreement not to revoke the individual wills; and (2) the one who died first must have died without revoking or changing their will in breach of the agreement. For a will to be considered to be a mutual will, and to therefore be bound by the doctrine of mutual wills, the above conditions must be present and cannot simply be inferred. The agreement must satisfy the requirements of a binding contract to be considered valid.
Mutual wills restrict the testamentary freedom (which permits each spouse to revoke his or her will and write a new will independently of the other spouse). Mutual wills are founded in contract and the parties are bound by the doctrine of mutual wills and will not be free to change their wills without the consent of the other beneficiary or beneficiaries bound by the contract.
It is very important that clients know the huge differences between mirror and mutual wills and the implications that can occur if they choose the wrong option. Simply because a client believes there to be a moral obligation attached with the idea of creating mirror wills does not make it so. Mirror wills are simply two wills that mirror one another and can be changed or revoked anytime without the consent the other spouse. With the evolution of families today taking so many different forms (blended families, step-parents and step-children, divorce and re-marriages) it is of the utmost importance that those planning to create a will are aware of these profound consequences of choosing the wrong option.