Mirror, Mirror: Is This A Mirror Will or A Mutual Will?
Just as your mirror image is (almost*) identical to the person it reflects, a mutual will can seem almost identical to a mirror will. However, as will be explained below, the two types of wills have very different consequences.
Mirror wills are created by two people and have identical provisions. In their most simple form they would say "I leave everything to my spouse". Both spouses sign these identical wills. Importantly, at any time, either spouse can change his or her mind and disinherit the other spouse. Mutual wills look the same but with one key difference. While the provisions, including remainder/gift-over provisions are identical, the mutual will is contractual. It can only be changed with the consent of the other party. Once that party has passed, the will cannot be changed.
For example, a couple create identical wills that state: "I leave all to my spouse". After the death of my spouse, I leave all to our children, X, Y, Z and Q. Both spouses sign identical copies of the will. The first spouse dies. If the will is a mirror will, the surviving spouse can change his or her will. If the will was a mutual will, the surviving spouse is stuck with what was s/he has.
In Rammage v Roussel, the Ontario Superior Court looked at such wills. The couple Ruth and Alf were both previously married and both had children from their previous marriages. When they began to cohabit, they executed a cohabitation agreement which allowed Ruth to retain full ownership of her existing home and prevented Alf from making claims against it. Approximately, 12 years later the couple married.
Three years after marriage the couple executed identical wills which left everything to each other with a gift-over provision that the four children would inherit equally following the death of the surviving spouse. Alf died and Ruth inherited all but changed her will to leave everything to her two children, thereby disinheriting Alf's children.
The issue at trial became whether the two wills were mirror and subject to change or mutual and a contractual agreement that Ruth could not later modify.
In determining that mutual wills were created, the judge turned to extrinsic evidence of whether Ruth and Alf intended to create a binding contract. Specifically, the judge noted that one of Ruth's daughters would not have expected that Alf could make a new will disinheriting her and that both Ruth and Alf had treated the family as a unit. Specifically, Alf's obituary referenced four children and all grandchildren without respect to parentage. Similarly, both Ruth and Alf had told a number of people that they intended a four way split between the children.
The Lesson: Since mutual wills can be identical to mirror wills it is important to be clear as to what is intended. Subsequent marriage or breakdown in relationships between step-parents and children could provide incentive for a surviving spouse to change a will. If a mutual will is intended, it is recommended to use precise language that clarifies that a binding obligation is intended. Similarly, if the wills are intended to be mirrors, it is prudent to include language stating that either party can modify his or her will without the consent of the other party.
Should you require further information or advice regarding your own or the will of another, kindly contact our office. We would be pleased to assist you.
*I note that a mirror image is not identical in that it is a two-dimensional reflection of a three-dimensional being.
Rammage v Roussel, 2016 ONSC 1857 https://www.canlii.org/en/on/onsc/doc/2016/2016onsc1857/2016onsc1857.pdf
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