Mutual wills arise where two persons enter into an agreement to make wills, usually in identical terms, to distribute property on the death of the survivor.
The agreement to make mutual wills is a binding agreement in which each party, in consideration for not revoking their will after the death of the other will receive a benefit under the other party's will. The agreement need not be in writing, unless it specifically relates to land.
The agreement to make mutual wills therefore is often a solution offered in relation to estate problems created by the existence of a “blended family”, that is, where a couple has married several times and has from a former relationship children and possibly even step-children who have expectations of receiving a portion of the couple’s joint estate.
A will is always revokable, therefore in the case of mutual wills if one party revokes their will during the lifetime of the other, and this is made known to the other party, then an action for damages for breach of contract may arise.
Although a contract to make mutual wills is often offered to solve blended family problems, the High Court has decided that a contract to leave property by will cannot defeat a future family provision claim by an eligible applicant.
If you have a dispute regarding a contract to make mutual wills or you are considering making a mutual will as a solution to a blended family situation you should contact us to discuss the matter in more detail.
