Outside of the traditional single testamentary dispositions are other types of wills. The terms “mutual wills”, “joint wills” and “mirror wills” are often used interchangeably to describe situations where people such as a husband and wife make a reciprocal, corresponding or identical wills that leave the estate to the surviving spouse with the remainder passing to the children. Justice Hembroff in Doherty v. Berry (Estate of), 1999 ABQB 312 has quoted with approval, Canadian legal Professor Donovan Water’s opinion on the use of mutual wills where he states:
“If ever there was a manner in which wills should not be drawn up, this is it”
Despite being used interchangeably, mutual wills are importantly distinguished from joint wills, and mirror wills. A joint will is a testamentary disposition by two or more parties. Although it is usually one document, the courts have treated the document as the separate will of the individual parties (Re Gillepsie, 1968 2 O.R. 369-376). Mirror wills, (or sometimes referred to as reciprocal wills or corresponding wills) are wills made by two people, such as a married couple, who make identical dispositions which often includes leaving their estates to each other in the first instance, with alternate disposition to the same or substantially the same beneficiaries. In order for the identical wills to be considered â”mutual wills”, or for the mutual wills doctrine to apply, the courts have insisted that there must be a binding agreement between the persons who made the wills to dispose of their property in a particular way. According to the leading case Edell v. Sitzer 2001 O.J. No. 2909, this agreement must
The hallmark of a mutual will is the presence of binding agreement to adhere to the scheme of the mirror or joint will. This is referred to as an “agreement not revoke”. When the doctrine of mutual wills is imposed, it requires that if two persons have entered into a binding contract to dispose of their properties in a particular way and the first to die leave a will complying with their contract, the survivor will be bound by that agreement. If necessary, a constructive trust will be imposed on the survivor”s estate so the beneficiaries under the mutual wills will be able to receive the property that was originally intended to be left for them. This would allow a beneficiary to claim their share of the estate that was left to them but that has since been removed from the estate in violation of the original will scheme set out by testators.
It is the binding agreement not to revoke the wills which creates the imposition of constructive trust on the estate. If the mutual wills doctrine applies to a will, the surviving spouse may be restricted in how they may deal with the property left to them while they are alive and also be prevented from making significant inter vivos gifts. Given the fact that the doctrine of mutual wills may restrict what the surviving spouse may do with property that passes where the doctrine applies, consultation with an experienced lawyer is essential when drafting testamentary dispositions such as mirror or joint wills.