Here’s a recap of eState Academy’s May 20th Advanced Topic webinar hosted by Jordan Atin and Ian Hull.

In this week’s webinar, we discussed mirror wills and mutual wills, the differences between them and the issues to look out for if your growing an estate practice.

Mirror wills, also known as a reciprocal wills, are wills that have similar provisions of disposition between spouses.  Mutual wills, meanwhile, are wills that include a binding agreement that the testators will not change their wills after the death of their spouse. Not all mirror wills are mutual wills. Hence, the importance of the lawyer drafting a couple’s wills knowing the difference and avoiding the pitfalls that may follow.

Fundamentally, the goal of drafting mutual wills is to protect the entitlement of the ultimate beneficiaries, whether they be the children of each spouse, or otherwise.

In determining whether a mirror will is indeed also a mutual will, one must look to either an express agreement, namely, an explicit clause confirming that the will of a spouse is not to be changed, or an implicit agreement, inferred by surrounding circumstances. Evidence supporting a mutual will agreement include: the existence of mirror wills, third party evidence, family relationships, solicitor’s notes and other evidence from the drafting lawyer. 

The practical effect of a mutual agreement is that a constructive trust is formed over the assets of the last partner to die, and that the dispositive provisions of the partners’ mutual wills take precedence over any later wills drafted.

Of course, this raises a whole host of potential issues that can lead to future confusion and litigation. For example, are there any limits on what the surviving spouse may spend on themselves from their inherited assets after the death of their spouse? Can the survivor gift any of their mutual assets after the death of the first spouse? Should the agreement only govern inherited assets, or also include assets acquired after the death of the first spouse? 

In our view, a mutual wills agreement, unless all the complicated issues are very carefully addressed, is a minefield and, probably, should be avoided.

If you would like to watch a recording of the webinar, you can do so here.

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Thank you for reading!
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