In our recent eState Academy webinar, the topic of mirror wills and mutual wills arose. The definitive case on this issue was the 2016 Ontario Superior Court decision of Rammage v Estate of Roussel, which we have touched upon previously.
Mirror wills, or reciprocal wills, are a pair of wills drafted with similar provisions between two spouses, usually for the benefit of their children. Mutual wills are significantly different, however, in that they also have a contractual component. As outlined in Rammage:
“Mutual wills are reciprocal wills that the makers have agreed cannot be changed, at least as to their effect, without the consent of the other. Once one of the testators has died, it is not possible for the surviving testator to receive such consent, and therefore the terms cannot be altered.”
For example, in a situation where one spouse dies, leaving a surviving spouse and two children, if the surviving spouse were to make significant gifts to one of their children from the assets inherited from their late spouse, the other child may have a claim to equalize these gifts.
This is because, according to the contractual terms of a mutual will, the surviving spouse cannot have a sudden change of heart after their late spouse’s passing and frustrate the testamentary intentions they previously shared in the context of their marriage. In a sense, their capacity to dispose of their formerly joint assets is frozen with their spouse’s death.
Of course, not all mirror wills are also mutual wills, so a couple must be careful in their estate planning to be clear about what their intentions are regarding what a surviving spouse is allowed to do with inherited assets after the death of their spouse.
Thank you for reading!