In today’s world it is common for people to live in ‘blended families’ where, for example, a couple may have come together in a relationship later in life bringing property with them from a previous relationship and they also have children from their previous relationship.

What can you do to protect your wishes if you want to leave assets to your new spouse but make sure that on their death the children from your first relationship will ultimately receive those assets?.

The answer may be for them to make ‘Mutual Wills’.

Mutual Wills are a type of ‘contract’ where the spouses agree not to change their Wills without permission from the other spouse.

For example, spouses may make Mutual Wills agreeing to leave a house to the survivor in return for their agreement that upon the death of the surviving spouse the house is to be sold and the proceeds of sale divided along bloodlines to the children of their first relationship.

Just like any other kind of contract, if a surviving spouse to whom property has been left changes their Will in breach of that contract thereby leaving out the children from their spouse’s first relationship, then those children can sue the surviving spouse’s estate after they die for breach of the Mutual Will contract.

Some of the rules about ‘Mutual Wills’ are –

• A mutual Will arises when spouses agree to leave their property to the survivor of them, and then that survivor is to leave the property to agreed beneficiaries – usually a child or children of both spouses, including children from previous relationships.
• There must be an agreement between the 2 spouses not to revoke the Will without the knowledge of the other.
• The law of ‘trusts’ is used to enforce the contract for mutual Wills.
• Revocation of a Will by re-marriage (the law says that marriage automatically revokes the Will) does not terminate the agreement created by the contract for Mutual Wills but Divorce does free the surviving spouse from any obligation.
• A Mutual Will does not stop a beneficiary from challenging a Will if they have been left out of the Will.
• A challenge to a Will can still be made after the death of the first party to the agreement.

If you are considering making a Mutual Will then contact Geoff Brazel at Brazel Moore Lawyers on (02) 4324 7699 for more information.