Legal Guide

What You Need To Know About Mutual Wills

There is no guarantee that your spouse – who has also made a similar Will – will follow your wishes regarding how you would like them to distribute your wealth after your death. Your spouse is free to change their Will, especially if they remarry.

This is where Mutual Wills come into effect – it imposes a binding agreement on both you and your spouse to distribute your estates to your intended beneficiaries. It also prohibits you or your spouse from revoking or changing the Will without the other party’s consent.

This article outlines everything you need to know about Mutual Wills; what they are, why you need them, how they can benefit you, their disadvantages, and how experienced wills and estate planning lawyers can help you obtain one hassle-free.

What are Mutual Wills?

As mentioned before, Mutual Wills are usually made to ensure your assets are dealt with as per your wishes after your death. The Wills are created concurrently by spouses, along with a contract that legally compels them to not modify their separate Wills without the permission of the other. This means the Will cannot be revoked or changed when one party passes away.

The primary purpose of a Mutual Will is to retain the deceased’s assets within the family, especially to be distributed to the deceased’s children at a later date. With relationships and family structures continuing to evolve, and blended families becoming more common, Mutual Wills are particularly important in ensuring that your assets are passed on to your children and not to your spouse’s previous or new family.

It must be understood that by entering a mutual Will agreement, you are accepting the burden attached to the estate. If you breach the contract, the beneficiaries will be entitled to bring an action against the surviving party to enforce the agreement.

Why would I need a Mutual Will?

  • To ensure that your surviving spouse, who inherited your estate, will add a special bequest to your children in their Will upon their death.
  • To make sure that the children from your and your spouse’s past relationships can legally enforce you and your spouse’s agreement to care for them.
  • To grant your children from your previous relationship the right to sue the estate of your subsequent spouse if he or she fails to make agreed-upon arrangements for your children in their Will.

The benefits of a Mutual Will

Mutual Wills are commonly used by blended families to safeguard the rights of the parties' respective children by preventing any alterations to or revocation of the mutually agreed-upon Will. However, non-blended families could also reap the benefits of a Mutual Will such as:

Structure and certainty

Creating a Mutual Will provides greater security for the contracting parties; you can be assured that your assets will be dealt with in accordance with your joint wishes.

For example, in the event that one of the spouses passes away and the surviving spouse decides to remarry, it provides greater protection of the assets that they accumulated together – and to the exclusion of the new partner and their family.

Asset protection

The contracting parties have a say in who ultimately becomes entitled to their assets, including assets which may not pass into their individual estates – jointly held assets and assets held by one party only.

For example, although the surviving spouse still retains the benefit and ownership of their jointly held assets, the children of the deceased’s entitlement to benefit are also protected.

Preparation for inheritance

The ultimate beneficiaries will be notified of their equitable interest under the Mutual Wills, providing them with an opportunity to prepare for an anticipated – and irrevocable – inheritance before receiving it.

Transparency and peace of mind

With Mutual Wills, there is transparency between you and your spouse as to how your property will be dealt with upon your death. This provides peace of mind to the parties of the Will that their surviving spouse and children will be well taken care of.

The disadvantages of a Mutual Will

Given the enforceable and inflexible nature of the Mutual Will, it may not be a suitable option for young married couples just starting out and even some blended families. The Will does not take into account future unexpected events following the death of the first spouse such as remarriage or permanent disability. 

The other disadvantages of a Mutual Will include:

Ownership constraints

Due to the lack of flexibility in a Mutual Will, the surviving spouse may have ownership constraints relating to any property that may pass to them. This may cause more hardship to the surviving spouse, especially in the event of an unforeseen circumstance such as loss of income.

Careful drafting

There cannot be room for error in any legally binding contract, especially when it comes to Mutual Wills. The Will needs to be properly drafted and clearly state and identify the specific assets that will form part of the contract of the Mutual Will so that they cannot later be revoked or changed.

Terms of the Will are absolute

Mutual Wills are final and cannot be lawfully revoked. Therefore there are matters you need to consider, such as your age.

For example, if your spouse died when you were still young, you may remarry and wish to provide for your new spouse in your Will. If you had made Mutual Wills with your first spouse, this may not be possible.

Seek professional advice

While Mutual Wills may be effective in binding couples to an estate plan and protecting assets for children – particularly those from blended families – they do not offer flexibility or allow for unexpected events following the death of the first spouse. Hence, when drafting a Mutual Will, extra care needs to be taken to consider all future scenarios and to ensure that it contains the right provisions to suit your situation.

If you think a Mutual Will is what you and your spouse need, it is best to engage an experienced wills and estate planning lawyer to provide you with expert legal advice and guide you through the process of drafting the conditions of your Will, among others, to ensure you have a fool-proof Will in place.

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