Mutual Wills

Mutual wills may be used by couples, in a similar manner to mirror wills.  However, they include a statement that the will-maker agrees not to change or revoke his or her will without the consent of another party (usually spouse).  This agreement is intended to  bind the will-maker even if the other party predeceases the will-maker.  Thus, a mutual will has a  contractual component to protect the other spouse, creating what is known in law as a ‘constructive trust.’   However, a will-maker can always change his or her last will and testament. In the case of a mutual will, if a will-maker changes his last will and testament after the other party has died, the will-maker may create a right of action of beneficiaries under the trust for breach of the trust. Note that signing mutual wills is not a wide-spread  practice.  An alternative to protect a spouse’s interests is a living (inter-vivos) trust.

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