Will and Estate Lawyers commonly prepare for couples, Wills that may be described as mirror Wills. In that sense, the parties provide the very same provisions for the distribution of their estate. Commonly to each other and then their children. However, a Will is an individual document not a contract. Justice Cronk in the Ontario Court of Appeal case of Spence vs. BMO Trust Company, stated “the freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law”. Simply put, a Will is an individual document, and the Will Maker can change it at any subsequent time as long as one meets the usual rules of a valid Will. Experienced Wills and Probate Lawyers understand this fundamental proposition.
However, a Mutual Will is different than a Mirror Will. In a Mutual Will, generally between spouses, there is an explicit undertaking not to change one’s Will after the first has died. The normal motive is that after the first spouse dies, it is an effort to ensure the surviving spouse does not disinherit their children and are replaced by a new second spouse. However, a Will as we have stated above is a unilateral document and even if a Will says it is a mutual Will, that still does not stop one from doing a new Will after the first spouse dies. However, what does occur if a valid mutual Will is prepared is the beneficiaries under the old Will who have now found themselves disinherited can sue and impose a constructive trust on those assets that have flowed in the second Will. There is also the issue of in essence a mutual Will being a form of a marriage contract and is accordingly governed as well by the provisions of the Family Law Act. Full financial disclosure, independent legal advice and other considerations come into effect. However, Mutual Wills are a useful device when attempting to ensure that the children will indeed not be usurped by the unknown future spouse down the road.
It is not enough to simply say this is a Mutual Will. One needs the guidance of experienced Wills and Estate lawyers to prepare one.
