Reciprocal wills contain terms that mirror one another and are frequently prepared for couples. Mutual Wills are reciprocal Wills that the testators have agreed cannot be changed, at least without the consent of the other. Where there is no written agreement, the question arises: when do reciprocal Wills become mutual ones? The answer of the recent decision of the Ontario Superior Court of Justice in Rammage v. Estate of Roussel (2016 ONSC 1857) might surprise you.
In Rammage, the two testators, Alf and Ruth, began living together in 1985. When they first moved in together, Ruth had more assets than Alf and the parties decided to enter into a cohabitation agreement which provided that their respective property would be kept separate. The agreement was to survive the parties marriage, which occurred in 1997. In 1990, Ruth left the workforce and took up the mantle of homemaker. From then on, Alf’s income was used to meet the majority of their expenses. On Alf’s death, his estate included the majority of the couple’s wealth.
When they met, Alf and Ruth each had two children from previous relationships. By the time of their marriage, all four children were grown and living independently. All evidence, at least during the period of their marriage, indicates that Ruth and Alf treated all four as their own. For instance, all four children were invited to choose objects of significance to them from Alf’s mother’s belongings when she moved to a nursing home. Alf’s obituary mentioned his “four children” without distinction as to parentage.
In 1998, Alf and Ruth signed Wills which left everything to one another and, on the survivor’s death, divided everything equally among their four children. This estate plan was mentioned to Alf’s children on several occasions. Perhaps the most significant occasion was on Alf’s deathbed, when he told his daughter that he wanted Ruth taken care of after his death and that on Ruth’s death, everything would be divided equally among the children.
After Alf’s death, Ruth grew apart from Alf’s children. In 2010, she changed her Will to leave everything to her two daughters. She died in 2013. Shortly thereafter, Alf’s children brought a motion for summary judgement seeking a declaration that Alf and Ruth’s 1998 Wills were mutual Wills.
The court found for the plaintiffs. What is perhaps most interesting is how closely the facts resemble many couple’s estate planning. There is an estate plan made together, reciprocal Wills and a belief that the other party will stick to the plan after the survivor’s death. The outcome of the case provides a strong reminder of the importance of raising the issue of mutual Wills when drafting reciprocal Wills. Here are some other points of note:
- Unlike Edell v. Sitzer (a leading case on mutual Wills), neither of the testators was alive to provide evidence of their intentions at the time the Wills were made. There was no written or oral confirmation that the Wills were mutual.
- The lawyer who prepared the 1998 Wills recalled no discussion to the effect that Ruth and Alf could not change their Wills independently of one another and had not raised this issue with them.
- Section 13 of the Evidence Act requires that an interested party challenging a Will corroborate evidence he or she provides personally with other material evidence, before the court may find in his or her favour. In this case, the court found that the reciprocal nature of the 1998 Wills themselves constituted corroborative material evidence.
- Counsel for the defendant argued that the Wills could not be mutual because Ruth and Alf did not receive identical interests, given that the size of their respective estates varied. The court dismissed this argument. Each received the entirety of the other’s estate, which qualified as an identical interest.
- One of Ruth’s daughters stated that she would not have accepted that Alf could disinherit her, had Ruth predeceased Alf. The court found this statement “interesting”.
- The defendants argued that the cohabitation agreement provided evidence that Ruth and Alf intended to keep their assets separate. This argument was dismissed. The agreement was prepared over a decade prior to the 1998 Wills. It did not provide evidence of Ruth’s and Alf’s intentions in 1998. The nature of Ruth and Alf’s mutual financial commitments changed significantly throughout their relationship, particularly after Alf became the family’s primary breadwinner.
- Promises Ruth made to her children around the time she received an inheritance from her former husband in 1984, that her children would be “taken care of”, were dismissed for similar reasons.