Mutual Wills have been around since the late 1600’s and are a way to protect the assets of a beneficiary in the event of divorce or death. Best described as, contracts connected to the making of a will, a mutual will may be used to:
- Make a will with certain provisions included;
- Bar the revocation of a will and;
- Produce a mixture of all three.
Mutual wills are a rare exception to the Freedom of Testation rule, which states that an adult testator has full capacity and control to make a will and dispose of assets how they see fit. The mutual will makes a constructive trust over a testator’s assets.
Despite not being common, mutual wills can be drafted by an experienced succession solicitor when clear instructions are given by the testator. It is important that considerable thought be applied to whether a mutual will is appropriate for your situation. Your solicitor will be able to discuss with you both the advantages and disadvantages as they pertain to your circumstances.
Some examples of where a mutual will may be appropriate for a testator include; second or third marriages, complicated family structures, situations where cross-generational control of a business or particular assets is required and lastly to provide security to a designated beneficiary in the event of a severe change of circumstance e.g. death of a partner or dissolution of a marriage.
If you are interested in making a mutual will or would like more information on mutual wills, please contact the Greenhalgh Pickard estates team at info@gpla.com.au or by calling 07 5444 1022.