Couples (married or de facto) often wish to leave their estate to each and then, on the death of the survivor, have their combined estate divided between their respective families. Typically this occurs with blended families where there are children from prior relationships.
Each party relies on the survivor to ‘do the right thing’.
Generally, there are no restrictions on a person changing their Will. When the first passes away, the surviving partner can alter their Will. This may result in a new Will that does not reflect their current shared intentions. For example, the surviving partner may alter their Will to remove step children as beneficiaries and to favour their own children or a new life partner. With all the best intentions, circumstances change and it is impossible to predict what might happen in the future, particularly if the surviving partner is under the influence of third parties.
How do you ensure that your property ends up in the hands of your preferred beneficiaries, whilst allowing your partner to have use of your assets whilst they are still alive?
There is no single or simple solution.
One estate planning tool designed to help minimise this type of risk is an agreement you enter into with your partner to the effect that neither of you will change the broad intentions in your Will after the first dies. Such an agreement is called a Mutual Wills Agreement (“MWA”). A MWA is a legally binding document and serves as a mechanism to reduce the chances of the surviving partner changing their mind with respect to their Will.
Obligations of parties to Mutual Wills Agreements
MWAs give rise to obligations on the part of the surviving partner. The surviving partner becomes the trustee of the estate for the beneficiaries named in the Wills. The surviving partner is bound by the agreement.
If either partner changes their Will contrary to the agreement, the courts may intervene to enforce the agreement.
Breaches and Remedies
It is important that the beneficiaries are informed of the existence of the agreement, as they have the right to enforce the agreement. If the surviving partner has unreasonably exhausted all the assets of the deceased, beneficiaries may sue for breach of contract.
Shortcomings of Mutual Wills Agreement
A MWA is subject to the following shortcomings:
- A MWA cannot prevent the estate from being challenged under the relevant State or Territory family provision legislation.
- Changes in circumstances may occur after the MWA been executed which may result in the survivor being disadvantaged. A remarriage of the surviving partner can also complicate the operation of the agreement.
- The survivor may deliberately attempt to frustrate the operation of a MWA by depleting estate assets or changing the way they are owned.
Shortcomings such as disadvantage, depletion of assets, changes to ownership structures and lack of maintenance of the assets can be minimised with a well-drawn MWA, however MWAs are not an absolute guarantee of certainty. They work best in conjunction with other strategies if they are available.
It is important to note that remarriage will not change the obligations under the agreement but remarriage will automatically terminate an existing Will. The survivor should see a solicitor to obtain advice should they remarry.
A MWA is one ‘tool’ you can use to achieve your wishes. Although a Mutual Wills Agreement is sometimes the best solution, they are imperfect. The agreement will minimise the risk of your wishes being avoided but does not guarantee protection.
There are other strategies that can be used in conjunction with, or as an alternate to, MWA to help preserve your testamentary intentions.
The information contained in this fact sheet is general in nature and should not be relied upon as legal advice. Legal advice should be sought for specific matters. If you have any questions please phone 1800 555 777 and speak to one of our specialists.