Second Marriages & Succession - Part III

Mutual Wills

Estate planning in blended families often involves a difficult balancing act. Couples frequently wish to ensure that a surviving spouse is properly provided for, while also protecting the inheritance of children from an earlier relationship. One mechanism sometimes used to address this tension is the concept of Mutual Wills. As discussed in the earlier articles in this series, situations involving second marriages often require careful balancing between the needs of a surviving spouse and the interests of children from an earlier relationship.

Mutual Wills are one method sometimes considered in attempting to manage that balance.

Many couples instead make what are commonly referred to as Mirror Wills — that is, Wills with identical or near-identical terms. Couples tend to make Mirror Wills when they wish to treat the beneficiaries of their respective Wills — usually their children — in exactly the same way.

However, once one member of a couple has died, there is nothing to prevent the surviving partner from changing their Will.

For this reason — and particularly within the context of blended families — couples will sometimes consider making Mutual Wills.

Mutual Wills contain provisions intended to prevent the testator from making significant changes to their Will in the future. The purpose is to ensure that following the death of one partner, the surviving partner cannot simply alter their Will in a way that disinherits the deceased partner’s children.

However, the law in this area is not always straightforward.

The Courts have made it clear that the mere existence of Mutual Wills is not, in itself, sufficient to establish that the parties intended to legally bind themselves to those Wills.

In other words, simply signing Wills with identical terms does not necessarily create a binding arrangement.

If a party later seeks to enforce the terms of Mutual Wills, the Court will usually look for additional evidence that the parties intended to bind themselves to that arrangement.

For this reason, couples who wish to rely on Mutual Wills will often also enter into a Mutual Will Agreement — a separate document that records their intention that neither party will alter the agreed testamentary arrangements.

Even with this additional documentation, however, difficulties can still arise.

In practical terms, a surviving partner can still consult a different lawyer and sign a new Will.

This is particularly so if:

a) the children of the deceased partner do not know who their deceased parent’s lawyer was (which is more common than one might expect); and b) they are therefore unable to locate the relevant documentary evidence.

When used thoughtfully, and when supported by the right structures and advice, Mutual Wills can play an important role in protecting intended beneficiaries — particularly in blended family situations.

However, they are not a guarantee.

Like many estate planning tools, their effectiveness depends not only on the documents themselves, but also on the surrounding circumstances: how clearly the arrangement is recorded, where the supporting documentation is held, and whether the relevant family members understand the structure that has been put in place.

For this reason, Mutual Wills are often best considered as one part of a broader estate planning strategy, rather than a complete solution in their own right.

Trust structures, life interests, and clear communication within the family can often provide additional protection and clarity.

Ultimately, the objective is not simply to create documents, but to ensure that the intentions behind those documents can be properly understood and carried out when the time comes.

If you're ready to start a conversation, give us a call 03 477 8080. Part I – When Children from a First Relationship Are Left Wondering Where They Stand

Part II – Balancing a Surviving Spouse with Children from a Previous Relationship

Part III – Mutual Wills

Part IV – Estate Planning in Blended Families