Mutual Wills, Joint Wills and Mirror Wills

Enacting a will is an important step for everyone to ensure that they have a plan ready in the event of the unexpected. It’s also a good idea to create one as soon as possible, so you are prepared for the future.

When couples share a significant number of assets, it can make the process of writing a will somewhat more complicated. Although many individuals in long-term partnerships choose to create individual wills, there are also several options for creating wills together. This can include drafting a single will to cover multiple people, also known as a joint will, or enacting multiple wills that proscribe the same actions in the event of one partner’s death.

Joint Wills

A joint will is a single will that is designed to plan for the distribution of assets of more than one person, typically two spouses. A joint will is unique because it relates separately to the property of each party that signs it, yet it is only one document.

When a joint will is executed, each signatory agrees to abide by the distribution of assets that is indicated at the time of their death. However, the parties can choose to revoke or modify the joint will during their lifetime.

Historically, joint wills became popular merely because of their convenient nature. They were not intended to provide any different benefits when compared to individual wills (as opposed to mutual wills and mirror wills, which will be discussed shortly), but they were simply a way to save time and resources for the lawyers who drafted them. When wills were written by hand, drafting a joint will would obviously take much less time than writing out two completely separate documents, and couples could often enjoy reduced legal fees.

Now, most wills are generally created through the use of digital forms, and plugging in information for two or more separate documents takes little more effort than one. Because of this (as well as the fact that women are increasingly bringing more of their own assets to a marriage), many couples now prefer to draft separate wills. Individual wills are sometimes thought of as less ambiguous than joint wills, and more flexible in the event that alterations are necessary.

Mutual Wills

Mutual wills are multiple wills enacted by two people that dictate what will happen to joint assets after death. Typically, mutual wills are created by couples, but in rare circumstances they can be used for other purposes. In most cases, mutual wills are drafted that indicate that the estate will be transferred from one spouse to the other in the event of a death. Then, the surviving partner agrees to hand the property over to the couple’s children at a specific time.

Besides involving multiple wills that are mutually-agreed upon, the main quality that differentiates mutual wills from other types of joint agreements is that they are designed to be irrevocable. In order to execute the agreement, the surviving spouse must agree not to change their intention after the first party’s death. This is in stark contrast to the principle behind most wills, which is that parties are generally free to alter their will before their death, as long as they are deemed to be mentally capable.

The other significant factor that defines a mutual will is that it must satisfy the requirements of a contractual agreement. In other words, there must be clear intention and consent regarding the arrangement, and the parties must have legal capacity to act. Mutual wills cannot be executed around a haphazard understanding of the wishes of the parties.

Mirror Wills

Mirror wills are, essentially, exactly what the name suggests: they are two separate wills that contain identical language in regards to the distribution of assets of two people. Mirror wills are used so that, no matter which spouse dies first, the assets will be handled exactly the same way. In order for a mirror will to be possible, both parties in a relationship must agree completely on what should happen to their assets when both of them die.

Mirror wills can also be mutual wills if they contain language that indicates what happens to the property when the other spouse dies, and they are irrevocable. However, not all mirror wills are necessarily mutual wills. Sometimes, they are simply two wills from people who absolutely agree on the distribution of property, and are in a situation where a joint will is either undesirable or inconvenient.

Mclarty Wolf

Recent Posts

Case Comment: Holman v Brooke, 2022 BCSC 526

When disputes over the co-ownership of property arise and cannot be solved by discussions between…

1 year ago

Registrar’s Hearing-Passing of Accounts

This is the second blog in the series relating to the passing of accounts of…

1 year ago

The Final Phase in Administering an Estate: The Duty to Account and the Passing of Accounts

A Personal Representative's Duty to Account When a person passes away, their will typically names…

2 years ago

Proprietary Estoppel: What remedies are available when someone takes back a promise to transfer property?

In a previous post, we discussed the legal doctrine of proprietary estoppel. The purpose of…

2 years ago

Proprietary Estoppel: When is a Real Property Owner Required to Follow Through on a Promise to Transfer Land to Someone Else?

What is proprietary estoppel? Proprietary estoppel is a legal remedy that may be used in…

2 years ago

WESA Section 58 – Curing Deficiencies in an Invalid Will

While it is always best for a person to record their intentions about who will…

2 years ago