Listen to Mutual Wills
This week on Hull on Estate and Succession Planning Jonathan Morse and Chris Graham discuss aspects of mutual wills and the doctrine of mutual wills. They look into some interesting cases related to this topic as well advantages and disadvantages of mutual wills.
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The recent England and Wales Court of Appeal decision in Olins v. Walters [2008] EWCA Civ 782 gained some degree of notoriety among British legal observers. This Mutual Wills case was notable for its clear pronouncement that a constructive trust is impressed on the estate of the first testator to die during the lifetime of the second testator.
Of arguably greater interest was the somewhat remarkable finding of the Judge of first instance ( see [2007] EWHC 3060 (Ch).] on the usually mundane issue of due execution. One of the witnesses to the Will stated under oath that she was "more than 100 percent sure that she had not witnessed the signature of the deceased on the Will." Notwithstanding this evidence, the trial judge held that she was honest but mistaken and upheld the Will.
It is not often easy to mess with legal presumptions. Consider, for instance, the commentary subsequent to the Supreme Court of Canada decision in Pecore v. Pecore which focused on the suggestion that resort to presumptions is made as a "last resort." While it is tempting to think that the evidence will always rule the day, the trial judge finding in Olins v. Walters (which, curiously, was appealed on the mutual wills issue but not on the finding of due execution) suggests that the presumption of due execution of a Will is particularly entrenched.
David M. Smith
Spouses commonly execute virtually identical Wills, called “mutual wills”, on the assumption that each will give the same gifts on death out of the same “family” pool of property. Oftentimes the residue of the estate of the first spouse to die is left to the surviving spouse, as long as he or she lives at least 30 days after the death.
A problem can arise if both Wills provide for the same gifts in case of simultaneous death or death within 30 days. If both spouses do in fact die within 30 days of each other then an unintended double legacy could result.
The following wording might cause exactly that problem in a mutual will scenario (and perhaps should be avoided or redrafted):
1. I direct my estate trustee to pay or transfer the residue of my estate to my said Husband ( Wife) if he (she) survives me by at least thirty days.
2. If my said Husband (Wife) dies before me or fails to survive me by at least thirty days, then I direct my estate trustee to pay $100,000.00 to my daughter Sue and pay or transfer the residue to my son Joe.
If both spouses have that wording in their wills, and both die within 30 days of each other, Sue might get two gifts of $100,000 for a total of $200,000 at Joe’s expense, even though only one $100,000 gift was intended. Joe would not be a happy beneficiary.
Thanks for reading.
Sean Graham
Listen to "Mutual Wills"
Read the transcribed version of "Mutual Wills"
During Hull on Estates Episode #61, Sean Graham and Paul Trudelle discuss mutual wills and mirror wills. They discuss examples where a mutual will and a binding agreement would be used, such as second marriages.
They also cover the importance of documentation of intent and discuss potential drawbacks of the mutual will.
For more information on this topic, see the article by Debra L. Stephens, "Mutual Wills: A Primer", which was presented at The Six Minute Estates Lawyer 2007, on April 10, 2007.
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