Posted on September 27, 2023
My partner and I made wills at the same time. Now, my partner has passed away. What are my options?
Often, a husband and wife will prepare their estate planning documents together. Meaning, they will prepare their almost identical wills and jointly attend their solicitor’s office to sign those wills.
Whether or not you and your partner signed mirror wills or mutual wills is an important question.
Mirror wills
Mirror wills are wills that are mostly identical to each other. Typically, but not always, the spouses appoint each other as executor and sole beneficiary and in the alternative appoint an alternate executor and beneficiary/beneficiaries.
Mirror wills can be changed or revoked at any time, without the permission of the other spouse, as long as the will-maker still has the requisite capacity to do so.
Mutual wills
In contrast to mirror wills, mutual wills create a legally enforceable contract.
Mutual wills made by spouses also typically mirror each other, however, the terms of the wills prevent either party from changing or revoking their will without providing notice to the other spouse. Providing notice allows the other spouse to change their own will. However, if one spouse dies or the other spouse does not have capacity to change their own will, the survivor cannot change their will.
The High Court in Birmingham v Renfrew [1937] 57 CLR 666 summarises a mutual will as follows:
- Two parties can make mutual wills, creating a contract;
- Whilst both parties remain alive, the contract can only be altered or revoked with notice to the other;
- If the contract is broken without sufficient notice, either whilst both parties are alive or by the survivor after the death of the first, it is fraud;
- On the death of the first party, the contract becomes binding and irrevocable;
- The survivor is free to deal with the inherited assets, however remains bound by the obligation to the deceased to hold those assets on trust for the benefit of those named in the will;
- Those named in the will become beneficiaries of a constructive trust pursuant to the terms of the will, with the survivor acting as trustee for their benefit and the trust capital is what is left after the survivor has enjoyed it; and
- Any transactions to defeat the intentions of the deceased party by the survivor will be in breach of that trust.
The risk of entering into a mutual will contract is that your personal circumstances may change and you may have limited ability to change your Will.
In light of the High Court’s position as outlined above, it is imperative that your long-term intentions are discussed when you and your partner embark on preparing your estate planning documents and you understand the long-term consequences of those intentions.
If you would like to discuss your person circumstances, please contact our office on (03) 9853 0311.
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