What’s a Mutual Will?

A mutual will is commonly used by married couples. It creates a legally binding contract between the two spouses. This contract prohibits either party from altering or revoking the will without the other’s consent. So what exactly does this mean, and what are the benefits of using this type of will? Here is our guide on what a mutual will entails and the reasons why they are used.

What is a Mutual Will?

As discussed, a mutual will is a will that forms a legally binding contract between two individuals, typically a husband and wife. This contract holds that neither party can change or revoke the will without each other’s consent. The will is drafted and agreed by both parties. The primary purpose of these wills is to ensure the free transfer of property to their agreed beneficiaries.

So what happens when one party dies? Generally, the contract will stipulate that on the death of the first party, the second party cannot alter or revoke the will.

So what is the effect of a mutual will? The effect is that when one person dies, the surviving party is legally bound to the terms set out in the will. They are therefore prohibited from amending the will.

What Are the Advantages and Disadvantages of Using a Mutual Will?

There are many benefits for using a mutual will. For instance, it creates certainty and assurance that both parties agree to the term’s of the will. The primary benefit of using a mutual will is that the surviving party is responsible to deal with the person’s assets.

However, couples should be aware of the disadvantages in using a mutual will. The central disadvantage is that if you want to change the will, you need agreement from the other party. Difficulty arises where one party has passed away. Where this is the case, it is very challenging, if not impossible, to change the will.

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For example, the problems associated with this can be seen in young couples. Where a young couple has established a mutual will and one person passes away, the survivor may decide to re-marry. If they want to provide for their new spouse in their will, this will not be possible as they are prohibited from amending the will.

Ultimately, it is evident there are many benefits to mutual wills, however they can be limiting in some circumstances.

Reasons for Using a Mutual Will

Are you thinking of creating a mutual will? There are many reasons why people use a mutual will. For instance:

  • Where the husband and/or wife has children from an earlier marriage/relationship. Here, the couple may agree that the surviving party will receive the assets. Then, upon death of the survivor, the assets will be divided equally among their children.
  • Couples later in life who are less likely to remarry following the death of a party.
  • As a strategy for asset protection, as a mutual will keeps property ‘in the family’.
  • Elderly couples wanting to settle their affairs before they pass

If you do not have a will and are unsure where to start, read our guide ‘When to Write a Will‘.

Concluding Thoughts

Ultimately, mutual will’s can be beneficial as they provided certainty between parties. However, as stated by Mason P in Baird v Smee, mutual wills are generally only appropriate ‘in the case of an elderly married couple wishing to settle their affairs in the same way before they die’. Hence, it is important to tread carefully in this area and carefully draft this contract. You can customise our Will for free. However, with mutual wills, we would recommend consulting a Wills Lawyer who can provide advice and help you draft a valid will.

Don’t know where to start? Contact us on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest lawyer marketplace.

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