Estate planning is a complicated process, and it takes a lot of work to ensure that everyone you care about is provided for. Two mechanisms that can be used are Mirror Wills and Mutual Wills.
Mirror Wills create identical provisions in multiple wills and are usually used by spouses. For example, each will could leave everything to the other spouse with a gift over to their children in case the other spouse passes away before the estate is distributed. This method gives the surviving spouse complete control and ownership over the property, and that spouse may change their will after the other’s death if they wish.
A Mutual Will is similar to a Mirror Will in that the provisions in each will mirror the other. It is different because Mutual Wills cannot be changed except as agreed upon. When Mutual Wills are created, both parties agree not to revoke or change their wills, except as provided by that agreement, including after the other’s death. This type of restriction is most often used with blended families, when one or both spouses have children from previous relationships. In those situations, Mutual Wills can be a good way to ensure that if you predecease your spouse that your children will still be provided for.
Problems arise when it is not absolutely clear whether or not two people intended to create Mutual Wills. If there is doubt, Courts generally do not want to interfere with a survivor’s freedom to change or create a new will. This was exactly what happened in Dolby v DeSantis Estate B.C.J. No. 297 (BC SC). Mr. Dolby and Mrs. DeSantis created identical wills. The wills gave all property to the other spouse, and Mr. Dolby’s children would receive all of the property if they both passed away. After Mr. Dolby’s death, Mrs. DeSantis changed her will and left all of the property to her side of the family. When Mr. Dolby’s children sued Mrs. DeSantis, the Court found that there was no evidence that Mrs. DeSantis ever intended for the first will to be a Mutual Will, and she was free to change her will at any time before her death. The fact that Mr. Dolby and Mrs. DeSantis signed identical wills at the same time did not prove that the wills were Mutual Wills. In order to prove that wills are Mutual Wills, not Mirror Wills, it must be proven that the parties agreed not to revoke the will or to be bound by its provisions in making any subsequent will.
Creating a will is a significant life event that needs to be attended to with the proper diligence and care. If you would like to create your first will or have any questions regarding your existing will please contact Heath Law LLP at 250-753-2202.