Is a mutual Will right for you?

Written by Laura Pavia

Edited by Catherine Micallef

What is the doctrine of mutual Wills?

A mutual Will exists when two testator enter into a Will and binding contract not to change those Wills upon one party passing away. Where one party passes, the surviving spouse or partner is bound to the agreement to distribute their estate in accordance with the agreement which was made while both parties were alive.

How do mutual Wills operate?

The operation of a mutual Will requires both testators to enter an agreement where the estates of each party is distributed in a certain way. Upon the death of one party, a constructive trust arises. If the survivor attempts to alter the Will, the principle of equity will intervene. Equity prevents the survivor from dealing with the subject’s estate in a way contrary to the agreement made while both parties were alive. A mutual Will can only be amended provided that both parties agree to the changes while alive.

How are mutual Will’s commonly used today?

• Blended Families

• Families with a significant amount of wealth

Benefits of mutual Wills

Striking Balance for Blended Families -

• Provides second or subsequent spouse with a security and flexibility for both themselves and their children.

• Security -

• In the context of a nuclear family, the mutual will can provide security for either spouse along with their biological children provided careful consideration when contesting the Will. Especially where a partner remarries or enters into a de facto relationship.

Transparency –

• It is important to notify the beneficiaries of their interests in the parties’ estates so the nature of the mutual Will can be understood.

The need for careful planning is vital for drafting the mutual Will. The assets and the rights of the survivor must be clearly established when in the drafting process. It is an obligation that once a mutual Will has been established, the parties must notify the intended beneficiaries of its existence. If you feel you have not been fairly provided for in a Will or feel fraud has been undertaken on behalf of the parties, you can apply for a family provision against the survivor.

The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our office if you are considering making or contesting a mutual Will. You can contact our estates team on (03) 9311 8911.