Mutual Wills – what are they?

Mutual Wills arise where two (or more) people make an agreement as to the disposal of their property through Wills and each has, in accordance with the agreement, executed a Will.

Mutual Wills are often made between husband and wife, in second or later marriages and where there are children from earlier relationships. They provide a mechanism for protecting the property brought into a marriage usually for the benefit of children of prior relationships — while allowing the survivor enjoyment of the property during their lifetime.

The object of Mutual Wills gives the survivor enjoyment of the property, but preserves assets for the children of the prior relationship, rather than have the property go to other relatives of the survivor.

The doctrine of ‘Mutual Wills’ dates back to the late 18th century, the case involved two people making promises about their wills to ensure that their family would benefit in a particular way after each of their respective deaths. The enforcement of the promises through the medium of a constructive trust lay at the heart of the doctrine.

The doctrine is based upon the mutuality of obligations; each testator making provisions by will in return for provisions made by the other(s). The obligation on the survivor to the mutual wills agreement was specifically enforceable. Therefore, when one person dies without having revoked her will (that is, she had performed her part of the contract), the other party is bound to give effect to their agreement.

Mutual Wills are not that common, and the binding nature of the arrangement means that the survivor loses the power to gift their property freely both during their lifetime and by Will.

In a leading case on Mutual Wills in Australia the wife had inherited property under the Will of an uncle. The husband had no property. Instead of leaving a life estate to the husband and then leaving the remainder to certain relatives, an agreement was made between the husband and the wife that she would leave the bulk of the estate to her husband, with him promising to make a Will leaving his property to those relatives and that he would not alter that Will. Wills in the agreed terms were made; the wife died; the husband subsequently made a different will under which the wife’s relatives interest was much smaller  than under the will made in accordance with the agreement. The Court decided that as the wife had died without revoking her will, then the husband was bound after her death not to revoke his Will at all. The obligation on the survivor to the mutual Wills agreement was specifically enforceable by the relatives.

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