Mutual wills are two wills, one executed by each of two individuals who have agreed to a specific estate plan. Most often each party leaves their estate (or a life interest in their estate) to the other party and their instructions are identical or very similar as to how their respective estates are to be disposed of upon the death of the party who is last to die. In other words, regardless of which of the two parties dies first, the distribution of the remaining assets of the survivor’s estate is agreed upon by the parties in advance. Once one of the parties dies, the estate plan becomes irrevocable with few exceptions.
Case law indicates that courts will apply the “mutual wills doctrine” where there is independent evidence of an agreement not merely to make identical wills but to dispose of the property in a particular way. It must amount to a contract at law. Wills that are executed simultaneously and have identical provisions will not be presumed to be mutual wills. Here, one should note that spouses often execute what are commonly referred to as “mirror wills” in that they are identical or virtually identical, expecting that the surviving spouse will not alter the terms. But unless there is evidence of a specific agreement between the spouses not to alter their estate plans, the surviving spouse is free to change his or her will at any time.
Evidence that an agreement exists may include prohibition against revocation of the plan contained in the wills or another document. As neither of the parties to the mutual wills are usually available to testify, hearsay evidence and other conduct may be relied upon as proof of the agreement.
Download the PDF: Concepts Newsletter – Fall 2008