In the Ontario Superior Court decision, Lavoie and Trudel, 2016 ONSC 4141 (“Lavoie and Trudel”), the court was tasked with determining the validity of a will made on December 5, 2007 (the “2007 Will”) by the deceased, Lucien Trudel (“Lucien”), following his wife, Madeleine Denis’ (“Madeleine”) death.  Among the issues concerning the validity of the 2007 Will was whether the wills made on March 30, 1983 (the “1983 Wills”) by Lucien and Madeleine were mutual wills, or merely reciprocal wills.

Mutual wills have been summarized in Doherty v Berry (Estate of), 1999 ABQB 312, as reciprocal wills (explained below) made by two individuals (usually spouses) who have agreed to pool their mutual property and to provide for its disposal according to an agreed scheme.  The scheme provides for conferring reciprocal benefits on each other for the survivor and after the death of the survivor, it provides for disposal of the mutual property to other persons, as the parties have agreed.

The most fundamental prerequisite for an application of the doctrine of mutual wills, considered in Edell v Sitzer, 2001 Carswell 5020 SCJ, is that there be an agreement, which is a binding legal contract between the two individuals and not just a loose understanding or sense of moral obligation, which must be proven by clear and satisfactory evidence, and that the wills not be altered or revoked without the other’s consent.  The agreement not to revoke may be incorporated in the wills, or it may be proved by extrinsic evidence.

The legal consequence of any future alteration or revocation is that a constructive trust may be imposed on the survivor’s estate for the benefit of those who were intended to benefit under the agreement.

Mutual wills are not to be confused with reciprocal or mirror wills, which are wills, usually made by spouses, that reflect the exact same provisions, namely the transfer of their estate to each other when one predeceases the other and, typically, the transfer of their estate equally to their children upon the death of the last surviving spouse. Reciprocal wills on their own are capable of being revoked after the death of one of the spouses.

Turning to the facts in Lavoie and Trudel, the 1983 Wills are certainly reciprocal wills in that each of Lucien and Madeleine left their estates to each other if they predecease the other and then equally to Madeleine’s two children.  The 2007 Will represented a marked change from the 1983 Wills, whereby Lucien revoked the 1983 Will and left his entire estate to his four children, completely cutting out Madeleine’s two children, thereby, giving rise to this claim by Madeleine’s two children.

The court considered the evidence required to establish mutual wills and found no provision on the face of the 1983 Wills or any collateral written agreement that indicated that they were mutual wills or that they were incapable of revocation at a future date. The court therefore had to look to extrinsic evidence to determine whether there was a verbal agreement between Lucien and Madeleine not to revoke the wills after the first of them to die.

Despite evidence presented by Madeleine’s two children that their mother had told them about a permanent arrangement she had made for their inheritance, the court found this evidence to be self-serving and insufficient to create a legally binding contract between Lucien and Madeleine.

Courts will not interfere lightly with the deeply entrenched common law principle of testamentary freedom, that is, a testator’s freedom to distribute his or her property as he or she chooses. In this case, a lack of clear, cogent and compelling evidence rendered a decision that the 1983 Wills were not mutual wills.

As an estate planner, preparing reciprocal wills for spouses is common practice. Mutual wills, on the other hand, are not ordinary.  Mutual wills may result in unforeseen and undesirable consequences.  For example, if after the death of one spouse, the survivor remarries thereby revoking any prior wills, once the survivor passes away there would likely be a constructive trust imposed on the survivor’s estate for the benefit of those who were intended to benefit under the mutual will agreement.  Although mutual wills may be useful in blended families to ensure all of the children receive an equal benefit from the family property regardless of which spouse dies first, due to unanticipated circumstances which may occur after the death of one of the spouses, it is often best to avoid engaging in mutual will planning and rather use other types of planning, such a setting up a testamentary trust.  Nevertheless, it is important for estate planners to discuss the doctrine of mutual wills and its ramifications when advising spouses and keep notes in the file relating to the discussion.