Mutual wills can play an important part in testamentary planning if there is no other reasonable alternative. Birtles and Neal in Hutley’s Australian Wills Precedents (8th ed, 2014) advise simply: “Avoid them.” The reason is that a mutual will removes testamentary freedom and keeps a surviving testator to a promise made to a now deceased partner. This is both their strength and their weakness.
What is a mutual will?
A mutual will is where two testators (generally) make a written promise to each other to sign a will of certain content and not to change that will without the consent of the other testator. Naturally when the other testator dies consent cannot be obtained.
The mutual will creates a binding contractual relationship between each of the testators enforcable at law on the estate of either testator. Although the surviving testator can make a ‘new’ will, the promises made in the mutual will can be enforced against the estate.
A common form of mutual will might provide that each testator gives their estate to the other on the promise that on the death of the surviving testator the estate is divided between the issue of each of the testators, and specifically, not just the issue of the last surviving testatator.
The advantage is that it (commonly) allows an elderly surviving testator in a second marriage to remain in the ‘marital house’ of that second relationship because on that surviving testators death the children of both of the testators receive the inheritance.
In what circumstances might a mutual will be appropriate?
They can play a role in specific circumstances, most commonly for ‘older’ couples in a blended relationship where one or both of them have children.
The reason it is more appropriate for older couples is that for younger couples circumstances can (or will) substantially change and retaining testamentary freedom is paramount.
How is a mutual will entered into?
Legally speaking a mutual will can be entered into in any circumnstances in which a binding contract can be made (e.g. even by an oral promise), however it it advisable for the testators to execute a “contract to make mutual wills” at the time the actual wills are signed. Naturally both the will and the contract to make mutual wills should be prepared by an appropriate experience lawyer.