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The Ontario Superior Court of Justice recently looked at the concept of mutual wills in a case where a wife changed her will after her husband’s death to exclude her stepchildren from the inheritance.

The Facts

Alf and Ruth Roussel began cohabitating in 1985 and married in 1997.  Each had two children from previous relationships.  In 1998 they each signed wills by which they gave all of their estates to each other and provided for an equal division amongst their four children on the death of the survivor.

Alf died in 2009 and Ruth inherited his estate under the 1998 will.  The relationship between Ruth and Alf’s children deteriorated after Alf’s death.

In 2010, Ruth prepared a new will leaving her estate to her two daughters.  Ruth died in 2013.

Alf’s two children challenged the validity of Ruth’s 2010 will, claiming that she had made a mutual will in 1998 that prevented her from subsequently changing the effect of its terms.

Reciprocal Wills vs. Mutual Wills

Reciprocal wills contain terms that are mirror images of each other.  The wills made by Alf and Ruth in 1998 were clearly reciprocal, but that didn’t necessarily make them mutual.

Mutual wills are reciprocal wills in which each party receives an identical interest from the other (or the remainder or gift over is disposed of in an identical fashion) that the makers have agreed cannot be changed without the consent of the other.  If one party dies, it’s not possible to receive their consent to a change, therefore the terms cannot be altered thereafter.

If wills are not specifically identified as being mutual, there must be evidence of a binding legal contract to be deemed “mutual”.

Did Alf and Ruth Have a Contractual Agreement to Make Mutual Wills?

Since there was no direct written or oral confirmation that the 1998 wills were mutual, the Court had to look at other evidence to figure out if Alf and Ruth intended to make mutual wills.

Clear Evidence of a Verbal Contract to Make Mutual Wills

The Court concluded that there was clear evidence that Ruth and Alf had a verbal contract that neither could change the effect of their 1998 wills without the consent of the other.  They intended to make mutual wills.

The 1998 wills were made in the context of a 13-year period of cohabitation and both Ruth and Alf had treated their respective stepchildren as their own during their relationship.  Their wills contained two key components:

  1. the provision of financial security for the surviving spouse; and
  2. an inheritance for the four children in due course.

The intention to make mutual wills was consistent with the evidence that they both wanted to ensure that all of the children were beneficiaries of the survivor’s estate.  Ruth’s 2010 will was invalid.  To read the full decision, click here.

Lessons Learned

If you’ve decided that mutual wills are appropriate for you and your partner, what should you do?  Put it in writing.  Be clear and specific.  Beware, however, of the restrictions you will then face.  You will need your partner’s consent if you ever wish to change the effect of your will.

For further information about mutual wills or any other estate or family matter, contact Gelman & Associates to learn how our lawyers can help you.  Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.

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