Mutual Wills

by Jacqui Brauman

Ken and Lyn are married. Both are 60 years old and will not be having children in the future. Lyn didn’t have any kids, but Ken has two adult children from an earlier marriage. Ken wishes to leave all of his estate to Lyn, but on the condition that if she survives him, she will leave the whole of her estate to his two children.

Mutual WillsIt’s easy for them to make mirror image Wills, with Lyn leaving everything to Ken’s children after they’ve both passed away. But Ken is concerned about the possibility that Lyn might change her Will after he dies.

They agree to enter into a Mutual Will Agreement, which is a contract between them that neither will amend their Will without the consent of the other party. If one of them does change their Will after the death of the other, then it is a breach of contract, and the estate of the deceased spouse can take action.

This might seem to solve the problem at the time, and Ken will certainly feel better. Lyn might feel like Ken doesn’t trust her, but she would go along with it because she doesn’t intend anything else at this point in time.

Potential problems could arise after Ken has died, such as another relative of Lyn’s could make a family provision claim against her Will when she dies. The Mutual Will Agreement between Ken and Lyn does not prevent other people from make a claim. Or, Lyn could give away a lot of the property whilst she’s alive, so there is not much left for Ken’s children anyway.

There are alternative strategies to making a Mutual Will Agreement, like testamentary trusts, and some forms of life interests. Depending on how assets are owned, assets can also be removed from the estate so that they are left directly to children, or asset ownership can be changed from joint proprietor to tenants in common, so that Ken could leave his half of the family home directly to his children instead of to Lyn.

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