Mum has left our family home to her new husband – what can we do?

Date: Nov 27, 2011
Document Type: Article

Before Jim and Genevieve married they decided to execute mutual wills.  A mutual will is where each individual has a separate will but they confer reciprocal benefits on each other. Jim’s will stated that he would leave all of his estate to Genevieve and if she died the estate would be divided equally between their two children Julia and Jonty. Likewise Genevieve’s will left everything to Jim and to their two children if he died.

In this situation the doctrine of mutual wills applies if there is clear evidence of a mutual intention that the respective wills would be not be revoked by either party during their joint lives or after the death of the first testator. The intention to make mutual wills can be expressly stated in the wills themselves or in a separate contract between the couple. But more commonly a couple’s mutual intention is evidenced through their actions.

Jim died last year and Genevieve inherited his entire estate. Earlier this year Genevieve met Jacques. They had a whirlwind romance and married soon after. Before they married Genevieve changed her will in contemplation to her marriage to Jacques. Sadly Genevieve died in a freak scuba diving accident whilst on her honeymoon with Jacques.

Jacques claims that he is entitled to Genevieve’s estate. Julia and Jonty believe they are entitled to their mother’s estate as that was what was contemplated by Genevieve and Jim when they originally executed their wills. 

A court will look all of the circumstance surrounding the making of the wills in deciding whether there was a mutual intention. The fact that there were two wills to a similar effect executed at the same time will be relevant but not determinative of the matter.

Julia and Jonty will have do more than show that it was Jim and Genevieve’s expectation and desire  to have mutual wills. They have to prove that Jim and Genevieve considered themselves bound by an agreement that they would have mutual wills.  

If a clear agreement can be found that the wills were to be mutually binding, the court will give effect to that intention by means of a 'floating trust'. Basically this means that the court will say that Genevieve held Jim’s estate for the remainder of her life as a trustee for Julia and Jonty. Genevieve was entitled to use the estate property and spend the estate’s money. But Genevieve was not permitted to dispose of the property in the estate in a way that would prevent Julia and Jonty benefitting from the estate on her death.

If the court finds that there was a mutual will agreement between Genevieve and Jim then Genevieve was required to keep her agreement with Jim that they would have mutual wills. Genevieve was not permitted to change her will to leave everything to Jacques.  

If you believe you are entitled to an estate but are being prevented from benefiting from that estate you may need legal assistance. For advice from an experienced lawyer in this area contact Dominic Wilson on 02 8268 4000.

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