KEY TAKE-OUTS
- Mirror Wills can be changed.
- Mutual Wills cannot be changed.
- Mutual Wills may be useful for blended families.
- Mutual Wills are not recommended for younger couples.
If you and your partner have kids and want to provide for them should anything happen, then it’s important you know what a mutual Will is.
Not to be confused with mirror Wills, which are Wills for couples in the same terms as each other. These Wills can be amended or revoked at any time.
Mutual Wills are a contract between two parties, again usually partners, which cannot be amended or revoked without the consent of the other.
Mutual Wills are commonly used when the relationship between the couple did not result in children, but each partner has their own children from previous relationships, commonly referred to as a blended family.
The Will maker in a blended family often has to juggle the expectations of their partner with the expectations of their children.
If the Will maker wishes to firstly provide for their partner but on their partner’s death, they want their children to receive a share of their partner’s estate, a mutual will could be the answer.
When is it a good idea to have a mutual Will?
When a Will maker does not want to rely on the goodwill of their partner to look after their children in their Will if they die first.
For example, John and Mary have two children each from a previous marriage. They have mirror Wills leaving everything to each other. On the death of the second of them, everything is divided four ways between their respective children.
John and Mary assure each other they will not change their Will if the other one dies first.
Mary dies first. John receives the whole of her estate including the house Mary received in her divorce settlement from her first husband, her children’s father, and her children’s childhood home.
After Mary’s death, John does not see as much of Mary’s children as he used to while Mary was alive.
John in discussion with his own children decides to change his Will to exclude Mary’s children.
Mary’s children will now not receive any inheritance from their mother’s estate.
Mary’s children have no right to contest John’s Will to seek a share of his estate, as they are not eligible. As a stepchild, they need to have lived in John’s household and been dependent on John during their lifetime. Mary’s children were adults when John and Mary started a relationship and are not therefore eligible.
If John and Mary had signed mutual Wills providing for John to first receive Mary’s estate but on his death, the estate is divided four ways, John would have been prevented from changing his Will and Mary’s children would not have missed out.
When is a mutual Will not a good idea?
Mutual Wills do not provide for flexibility in circumstances and as a result, are not usually recommended for a younger couple.
For example, Sarah and Ben are aged 45, both have a 20-year-old son from a previous relationship.
Ben and Sarah sign mutual Wills leaving everything to each other and on the death of the second of them, everything is divided equally between their two children.
Tragically 6 months later Ben is killed in a car accident.
12 months later aged 47, Sarah meets Andrew. Sarah and Andrew lived together for two years and got married.
Sarah and Andrew were together for 40 years before Sarah dies.
Despite their long and happy relationship, Sarah was unable to leave Andrew anything on her death, as she was unable to change the mutual Will she had made with Ben.
What happens if a person changes a mutual Will without consent?
If a person does change their Will after signing a mutual Will, the beneficiaries of the mutual Will need to take court action to enforce the terms of the original Will.
In the example above, if Sarah changed her Will to provide for her new husband Andrew instead of Ben’s son, Ben’s son would be able to ask the court to enforce the terms of the mutual will contract his dad signed to ensure, he received half of Sarah’s estate.
Court action inevitably causes stress, delay and is costly for all parties.
How Coutts can help you?
As each family dynamic is unique, we strongly recommend you talk to one of our experienced lawyers in the Wills team to make sure that you have the right Will in place to suit your personal circumstances and needs.
For further information please don’t hesitate to contact:
info@couttslegal.com.au
1300 268 887
Contact Coutts Lawyers & Conveyancers today.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
