A common concern when a parent enters into a new relationship is how to ensure their children from a previous marriage will be adequately taken care of at the time of their death. While the common answer is to enter into a mutual will, there may be some hidden dangers a parent has not thought of as an alternative arrangement which may be more suitable.
What is a mutual will?
A mutual will is a contractual agreement between at least two people who agree to draft their wills on similar terms, which the parties agree upon. This prevents either party from revoking or amending their will without the other party’s agreement.
The most common use of mutual wills are by people who are in romantic relationships and at least one person has a child with a previous partner. By entering into a mutual will, the will makers can ensure that after their death, all children, including children with a previous partner, will receive their beneficial entitlement in accordance with the mutual will.
The main advantage is a mutual will’s ability to provide certainty when the first will maker dies. Because a mutual will can only be amended by a mutual agreement, it protects the rights of the first party if they die. As soon as the first party dies, the other party cannot change their will. In the event that the survivors do try to amend their will, the beneficiaries who lose their interest can sue the estate to enforce the mutual will.
A mutual will also provide the benefit of clarity between all persons who may be interested in both will maker’s estates. A mutual will sets the expectations that the children listed in the mutual wills must be provided for and this cannot be changed once one parent dies.
It is important that the mutual wills be carefully drafted so that there is no vagueness. For example, it may be the intention of both makers to have some of the terms amended without the other party’s consent. To do so, the will should clearly and carefully document which amendments require the other party’s consent and which amendments require no consent.
A mutual will is highly disadvantageous when the circumstances around the relationship between the will makers change. If a relationship breaks down and a maker will enter into a new relationship or has additional children, the maker will need to obtain the consent of the other maker’s will to amend their will. The other will maker is not compelled to give their consent to amend nor revoke a mutual will. This is why a mutual will is not favorable towards younger will makers.
Another issue relates to the estate’s assets once the first maker dies. Unless there are specific instructions to hold property on trust, the surviving maker will diminish the estate’s assets. This will mean that the beneficiaries do not receive an entitlement as valuable as at the date of the distribution of the first will maker’s estate.
Another disadvantage may arise where a stepchild is not made aware that a mutual will is in place. It is the responsibility of intended beneficiaries to know:
- a mutual will (not just an ordinary will) is in place between the will makers;
- what it means for the will makers to have a mutual will;
- what the intended entitlement was meant to be at the time the mutual wills were entered into; and
- they have the ability to challenge the survivor’s will if the surviving will maker amends their mutual will.
The main alternative is for each person to draft their own will but leave their gifts to be held in trust for their intended beneficiaries. This means the surviving will maker can amend their own will whenever they please. With a mutual will the maker will first have the assurance that the gift is to be held for the benefit of the person they prescribe in their will.
Holding a gift on trust will also give will makers more flexibility in amending their will if their circumstances change later. A will maker for an individual will, does not require the consent of another person to change their will and they can amend it to add new beneficiaries when required.
A mutual will is not something to be entered into lightly as once entered into, it is very difficult to amend and the will makers are bound to follow the terms of it. Before deciding to enter into a mutual will, a person should consider the following:
- whether there is potential for the relationship to break down;
- whether the will makers may wish to enter into new relationships and have future children; and
- whether the gifts they want to leave their children are specific gifts (for example a sum of money) which instead could be held in trust for the child.
If you have any questions or require assistance with drafting or reviewing your will in Queensland, please contact the propertyteam at NB Lawyers for more information.
Kayleigh Swift, Associate
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
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(07) 3876 5111
Chloe Skubis, Lawyer
Chloe Skubis is a Lawyer in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.
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(07) 3876 5111