The issue of mutual wills was front and centre in the July 26, 2010 decision of Re Hand Estate, 2010 NSSC 297 (CanLII).
There, Dr. Hand and Ms. Hand prepared wills in 1999. In his will, Dr. Hand conveyed a condominium to his son Richard if Ms. Hand was to predecease him (the condo was jointly owned with Ms. Hand). In Ms. Hand’s will, she provides that the condo is to go to Richard. Because of the joint ownership, this gift would fail if Ms. Hand was to predecease Dr. Hand, as the condo would pass to Dr. Hand by right of survivorship.
Ms. Hand predeceased Dr. Hand. The condo passed to Dr. Hand. Dr. Hand then revised his will, leaving most of his property to a daughter. He also transferred the condo into a trust.
Richard cried foul, arguing that the wills were mutual wills and therefore were subject to an agreement against revocation. Accordingly, he argued that he was entitled to a half interest in the condo.
The court disagreed. The court found that the wills were not “mutual”, and further, there was no agreement against revocation.
As to the first point, the court found that the different terms of the two wills meant that they could not meet the definition of “mutual wills”, which required that the wills contain reciprocal provisions.
Further, the different terms of the will suggested that there was no such agreement, and that the “flexible norm of revocability” applied.
This conclusion was supported by evidence from the drafting solicitor, who advised Dr. Hand and Ms. Hand that upon the death of the first of them, the condo would pass to the other as the sole owner. This, the court held, raised the issue of freedom of the sole owner to do as he wishes with his property.
Subsequent events did not assist Richard. The fact that for a number of years after Ms. Hand’s death, Dr. Hand continued to provide that the condo would pass to Richard suggested, at most, that the intention remained. It did not provide evidence of a mutual agreement against revocation.
While the court is free to find an implied agreement not to revoke a will, the court will not do so except in the clearest of cases. If parties intend to create mutual wills, with the accompanying agreement not to subsequently revoke the wills, they should do so in the clearest of express terms.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
At the October 2007 Hull and Hull Breakfast Seminar, I spoke on the concept of “Mutual Wills”. (See my paper, here.) In a recent decision out of Alberta, the Court again addressed the issue of mutual wills.
In Powell v. Glover,  A.J. No. 961 (Alta. Q.B.) the deceased and her spouse left wills that specifically provided that the wills were further to an agreement not to revoke or alter the will after the death of one of them. The wills went on to provide that the estate of the first to die was to pass to the surviving spouse. The wills further provided that upon the death of the surviving spouse, the surviving spouse’s estate was to pass to named residual beneficiaries, being children of the two spouses from prior marriages.
The husband died in 2003 and his estate passed to his spouse. She took the position that she was the sole beneficiary under her spouse’s will, and that she has no obligation to ensure that upon her death, any residue was to be distributed in accordance with the prior wills.
The Court had little difficulty in finding that the wills were mutual wills. The Court enforced the agreement between the spouses not to vary from the prior distribution agreement made while both spouses were alive. The surviving spouse’s estate (upon her death) was charged with a trust in favour of the residual beneficiaries of the mutual wills.
The fact that the surviving spouse was still alive did not make the Application premature.
The more difficult issue was what property was charged with the trust. The Court found that the trust would apply to all property acquired by the surviving spouse upon the death of the first spouse. The surviving spouse is allowed to deal with the property she acquired from the other during her lifetime, but is not entitled to divest her property intentionally in order to avoid the terms of the mutual will.
Listen to Delegation in Investment Accounts
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss delegation issues that arise when dealing with Investment Accounts and address a listeners question about the family cottage.