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Mutual Wills (NSW)

Parents with blended families and couples who have children from previous relationships often make special testamentary arrangements. The goal is usually to protect the rights of each spouse’s children to inherit the bulk of that spouse’s deceased estate. A mutual will can be an important step in preserving a testator’s intentions. Mutual wills are legally binding contracts between two parties, often spouses. The testators agree to the terms included in the mutual wills, with the proviso that neither can amend their will without the express agreement of the other party. This article explains the purpose of mutual wills and how testators can use them to protect their family interests in New South Wales.

Wills are by their very nature revocable. In the ordinary course of events, a testator updates a will regularly to reflect changes in their circumstances. By contrast, the main feature of a mutual will is that it cannot be revoked after the death of one of the contracting parties.

Legal Requirements for Mutual Wills

A testator signs a mutual will contract that includes covenants on the agreed terms of the wills. Two main factors separate mutual wills from other types of testamentary documents. The first distinction is that both parties must agree to the terms contained in the wills. The second difference is that neither party can revoke or amend their will unless both parties agree to the new terms. As such, if one of the parties passes away, both wills are irrevocable, and there can be no further amendment.

When Should People Use Mutual Wills?

Most commonly, spouses sign mutual wills when they have children from former marriages. It is a good choice for couples on a second marriage because it ensures that assets flow to the agreed beneficiaries. In this way, the surviving spouse cannot disinherit their stepchildren after their spouse dies.

While mutual wills bind couples to an estate plan, they are not flexible and do not account for the unknown future if, for instance, one spouse dies unexpectedly early. They are more suitable for older couples who are less likely to remarry after the death of their spouse.

It is important to note that it is not just spouses who make mutual wills. Any two people can sign mutual wills to bind each other to a deceased estate plan. For instance, siblings who wish to keep a property in the family could sign mutual wills. Business partners who agree to leave each other the controlling interest in their business could also decide to sign mutual wills.

Mutual Wills: Advantages And Disadvantages

It is common for a couple to agree to respect each other’s wishes for their deceased estate. In a perfect world, a surviving spouse would always respect their partner’s testamentary wishes. However, if a testator is not sure that a moral obligation is sufficient, a mutual will can impose a legal obligation on their surviving spouse to keep to their agreement.

The contracting parties have input into how their jointly owned assets will be distributed. A mutual will gives the surviving party more flexibility to enjoy assets of the estate during their lifetime at the same time as it respects the other testator’s wishes for their property. In this way, it is a better option for the surviving party than other alternatives such as life interest bequests.

Mutual wills are not for everyone. For instance, it is probably not the right choice for a young couple. If one spouse passes away at an early age, the surviving spouse may find that their testamentary options are limited in the future. The surviving spouse may want to remarry in the future, but they cannot provide for their new spouse under their will.

There is also a danger that a surviving spouse nullifies the effect of a mutual will by depleting the asset pool during their lifetime, leaving little to no property for the ultimate beneficiaries. In this case, the testator might want to include a testamentary trust in their will to exert some control over how the surviving spouse uses estate funds during their lifetime.

A mutual will can account for a testator who wants to gift their estate to their spouse on the proviso that their children ultimately inherit the wealth. The testator can rest assured that their spouse cannot revoke or amend the will to disinherit their children. A mutual will in this scenario can ensure that the testator’s children remain the ultimate beneficiaries of the testator’s estate.

A testator may choose to make a mutual will to bequeath their estate directly to their children. In that way, the surviving spouse receives no interest in the estate, and the spouse cannot make a Family Provision Claim against the estate.

What Happens If One Party Changes The Mutual Will Without Consent?

Legally, a surviving party cannot change their mutual will after the death of the other party. Any surviving party who revokes a mutual will is committing fraud because they accepted a benefit without bearing the burden attached to the contract. In that case, the beneficiaries of the original mutual will can bring legal action against the surviving party to enforce the terms of the original will.

The team at Armstrong Legal can provide you with advice about mutual wills or any other estate planning matter. As usual with estate planning matters, you need to obtain experienced and candid advice based on your specific circumstances. Please telephone 1300 038 223 today for any legal advice or representation, or you can fill in this online enquiry form.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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