Don’t let the similar sounding names fool you – while there are some similarities between “mirror wills” and “mutual wills,” there’s also a world of difference.
Mirror wills – also referred to as reciprocal or joint wills – are typically created by spouses who want to leave their estates first to each other, and then ultimately to their joint children.
The wills will “mirror” one another in that they typically state that the person leaves everything to their spouse, and if the spouse should predecease them, then everything goes to the children. With a mirror will, the survivor is free to change his or her will in the future if circumstances change.
So, what then is a mutual will? Mutual wills are a similar, yet clearly distinguishable, estate planning vehicle, with the key differentiator that the will of the surviving spouse cannot be changed after the first spouse dies.
Mutual wills are most commonly used by spouses who enter into marriages with children from previous relationships. While they wish to benefit each other upon death, they also want their respective children to have benefits upon the death of the surviving spouse. While a mutual will has elements of a mirror will, it also involves an agreement not to revoke or vary the terms after one of the spouses dies.
While this agreement can be made orally, it makes proving the agreement problematic if it’s later disputed. For this reason, the drafting lawyer should confirm the intention for mutual wills then document that intention with an express written agreement. The agreement should clearly outline the scope of the property to be governed by the agreement and the rights of the survivor to use that property during their lifetime. Ideally, this agreement should also be acknowledged in the will.
Mutual wills are a useful tool when a couple are agreed that their property should be distributed in a particular way and are content to waive their right to change those plans after the first death. However, because mutual wills “lock in” a pattern of estate distribution – and circumstances and situations can often change – these wills are often a source of controversy and dispute. They require careful drafting, and careful consideration before they are created.
You can find a detailed overview of the law related to mutual wills in Canada here: https://hullandhull.com/wp-content/uploads/2015/01/oct-2007-wills.pdf.
Thank you for reading!