Survivorship & Mutual Wills

Fernando and Elizabeth Masci had married on 30 September 1984. Fernando Masci died in February 2012 aged 79 years. Elizabeth and their children from earlier marriages survived Fernando. There are no children of their marriage

On 2 April 2006 they prepared a Will using a pre-printed Will kit form completed in Elizabeth’s handwriting and then executed:

• appointing one of each of their children as joint executors;
• providing that when one of them died the surviving spouse could stay in the family home until their death; and
• that on the death of the survivor, Fernando and Elizabeth’s children would receive an equal share of the estate.

Fernando and Elizabeth owned the family home as joint tenants. In this instance at the time of the death of a joint tenant survivorship operates to leave the survivor as the owner of the whole property. Therefore the first to die could not gift their interest in the property in a Will, as the survivor would automatically own the whole of the family home.

Following Fernando’s death in 2012, Elizabeth sold the family home claiming she was not bound by the terms of the joint Will because as the house was owned as joint tenants the right of survivorship applied.

Fernando’s son Graham, an executor named in the Will, commenced legal proceedings in 2014.The two main issues that the Court had to decide were whether Fernando and Elizabeth intended to: (i) make a mutual Will; and (ii) sever the joint tenancy of their house, meaning they would own it as tenants in common and the interest of each would form part of their estate and be dealt with under their Will.

The Court held that in light of the family circumstances at the time they made the 2006 joint will – to benefit the couple’s respective families equally, it was not to be revoked by either Fernando or Elizabeth without giving notice to the other, therefore it was a mutual Will

“The consequence is that Fernando having died without revoking the will, Mrs. Elizabeth Masci’s conscience is bound”

As the Court held that Fernando and Elizabeth intended to make a mutual Will, the severance of the joint tenancy occurred when the joint will was made because if the residential property remained jointly owned thereafter,

“the parties were free to deal with it in that capacity during their lifetime”

Therefore Elizabeth did not inherit Fernando’s interest in the family home automatically when he died, and it was to be dealt with under the terms of the joint Will. This was affirmed on appeal.