Mutual wills, are separate and distinguishable from mirror wills. Namely, mutual wills are reciprocal wills that the makers have agreed cannot be changed without the consent of the other. Once one of the them has died, it is not possible for the surviving partner to receive such consent, and therefore the terms cannot be altered. Mirror wills, on the other hand, can be changed by either party as they decide, and without notice to the other party.
The distinction between mutual wills and mirror wills is becoming increasingly relevant given the rise of blended families (families consisting of married couples and their children from previous relationships).
Most individuals who marry into a blended family want to ensure that both their children and their new spouse will be protected once they pass away. The execution of a mirror will may not always be sufficient to ensure this outcome.
This issue was recently considered in the Ontario Superior Court of Justice decision in Rammage v. Estate of Roussel, 2016 ONSC 1857.
In this case, Alfred Roussel (“Alfred”) and Ruth Roussel (“Ruth”) were married in 1997. Each had two children from previous relationships. In 1998, Alfred and Ruth executed wills by which they gave their respective estates to each other and provided for an equal division amongst their four children on the death of the surviving spouse (the “1998 Wills”). Alfred died 2009 leaving his estate to, Ruth. Ruth decided to prepare a new will in 2010 leaving the entirety of her estate to her two children. Ruth later died in 2013.
Alfred’s children took issue with the fact that Ruth’s estate passed entirely to her beneficiaries and not them and litigation ensued.
As there was no direct written or oral confirmation that the 1998 Wills were mutual, Alfred’s children had to rely on extrinsic evidence to support the existence of a binding legal contract. Justice Reid considered the context. Specifically, the fact that the 1998 Wills were made in context of 13 years of cohabitation including a commitment of marriage, the fact that Alfred had been the breadwinner for many years, the fact that Alfred and Ruth had acted throughout their marriage as if they had a family consisting of four children, the fact that the obituary was indicative of a unified family and that Alfred and Ruth had told the four children they would be left everything once both had passed.
Justice Reid held, that in the circumstances, Alfred’s children had satisfied the onus on them of proving that a verbal contract had existed between Ruth and Alfred to the effect that neither Ruth nor Alfred could change their 1998 Wills.
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