Joint Wills and Mutual Wills
How married couples dispose of their assets
The two shall become one as the good book says and in married life there are many ways in which the assets of two persons can be combined. The couple may have purchased a home together, have joint bank accounts and even investments. If there are children involved things can become even more complicated since both parties may desire that some or all of their assets pass to their children so that the process of building generational wealth can continue with the next generation.
As is common knowledge the most orderly manner of disposing of assets of a deceased person is via a Will. This is because all of the assets and beneficiaries are listed on that one document. In the absence of a Will, the assets will be distributed in accordance with the rules of intestacy.
Often times, a married couple will have discussions as it relates to what they wish to happen to their joint assets after one party or both parties have passed on. These wishes may be expressed either in a Joint Will or a Mutual Will.
What is a Joint Will?
A joint Will is a testamentary document in which both parties express their wishes as it relates to the manner in which their assets are to be dealt with upon the passing of both parties in turn. A joint Will is considered to be set in stone upon the death of one of the parties since it usually the case that it was executed with the intention that both parties would adhere to what was agreed to and documented in the Joint Will. For probate purposes a Joint Will is treated as the Will of each individual testator. Therefore upon the death of first party, the original Will is admitted to probate. Upon the death of the second party an office copy of the Joint Will must first be requested before an application for a Grant of Probate can be made.
This may be contrasted with a Mutual Will.
What is a Mutual Will?
A mutual will actually consists to two Wills the terms of which mirrors each other.
For example Ben would say in his Will:
I leave my share in the house located at #45 Len Hap Road,Bellevue Gardens, South Oropouche to my wife Shirley for life remainder to my son James.
While Shirley would say in her Will:
I leave my share in the house located at #45 Len Hap Road, Bellevue Gardens, South Oropouche to my husband Ben for life remainder to my son James.
A Mutual Will is not considered to be set in stone and if Ben predeceases Shirley she can revoke her earlier Will and execute a new Will with different terms if she so desires unless it is expressly stated in both Wills that it is the intention of both parties that the Wills will not be revoked.
Applicability of Trust Law
From the example above it can be seen that by saying “remainder to my son James” a trust has in fact been created in favour of James. However such a trust is revocable unless there are express words to the contrary. If the trust is irrevocable James would have a remedy in filing an action for breach of trust in the court if the surviving parent were to attempt to sell the house or revoke their Mutual Will upon the decease of one party to the marriage 💎.
Disclaimer: This article is written for informational purposes only and should not be construed as legal advice or as giving rise to an attorney-client relationship.
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