Validity of a Will – Joint & Mutual Wills

Article
Date: Sep 13, 2012
Document Type: Article

WHAT IS A JOINT WILL

A joint Will is a Will dealing with the property of two or more testators in the one Will.

The joint Will becomes operative as a the separate Will of each person and on the death of each person will be admitted to probate as their respective Wills.

Joint Wills are unusual, impractical and not recommended.

WHAT ARE MUTUAL WILLS

Mutual Wills are Wills usually made by separate documents in which two or more persons execute separate Wills conferring reciprocal benefits upon each other. These Wills are commonly used where spouses or partners make mirror image Wills.

The mere fact that two person make corresponding Wills in the sense that the existence of each Will is naturally explained by the existence of the other Will, is not sufficient to establish an agreement not to revoke Wills so made after the death of the other testator who made the corresponding Will.

CONTRACTS RELATING TO MUTUAL WILLS

To establish a binding agreement relating to mutual wills there must be some independent evidence of a contract between the persons making the corresponding Wills.

An agreement relating to mutual Wills need not be a formal contract although it is preferable if it is. The agreement can be set out in the Will itself or by reference in the Will to another document, then in existence, identifying the agreement between the hparties not to charge their will after the death of the other.

The agreement may be express or implied. It may be implied from the terms of the agreement or the circumstances surrounding the making of the mutual Wills. The evidence to prove an agreement for mutual wills must be clear and satisfactory. However, where there has been an agreement not to revoke and the first to die has before his or her death, dealt with, revoked or altered his or her will, the survivor, if he or she has notice of the revocation or alteration, cannot claim to have effect given to the will without the alteration of revocation, because he or she had the chance to alter or revoke his or her own will.

Where there is an agreement regarding mutual Wills and the surviving testator dies, having revoked his or her mutual Will and made a new one different than the previous Will, probate will be granted of the survivor’s new Will. However its executors may be compelled to hold the estate subject to any constructive trust arising out of the mutual Wills.

In this context the notional estate provisions of the Succession Act 2006 are also relevant.

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