It is common for partners and spouses to visit us together to discuss their estate planning and depending on each couple’s circumstances, it might be appropriate for them to make either mirror or mutual Wills.
Bennett & Philp has acted for clients in relation to mutual Wills for a long period, including having acted for the successful party in one of Australia’s earliest and leading case authorities in this area of law, Bigg v Queensland Trustees Limited.
Mirror Wills are Wills that are identical in their terms. For example, a husband and wife who leave their entire estate to each other and then on the death of the survivor, to their children equally. These are the most common Wills made by couples.
On the other hand, mutual Wills form a binding contract between a couple to make their Wills in particular terms and the contract prohibits them from changing the terms without the other’s permission or after the death of the survivor. Mutual Wills are often also made in identical terms, but not in every case, and usually by couples who have a blended family. For example, to prevent the survivor from disinheriting their step-children, if the biological parent dies first.
Simply making Wills in identical terms may not be enough to establish a mutual Wills contract and this arrangement is not suitable for all families. Therefore, it is important that you seek expert legal advice in relation to making mutual Wills, if you believe it is the appropriate option for you.
It is common for disputes to arise regarding mutual Wills, usually where one party has changed their Will without the knowledge of the other.
The fact that one of the parties has changed their Will without the knowledge of the other is not usually discovered until the death of the survivor. When that occurs, it is the beneficiaries under the original mutual Wills (usually the step-children of the survivor who has died) who are entitled to bring an action to enforce the mutual Wills contract and seek that their inheritance be paid to them.
If you need advice about your estate planning or an estate dispute, please contact a member of our team today.