Skip to main content

Joint and Mutual Wills: not a good idea…

By August 29, 2012December 8th, 2021Wills & Estates

Many dentists think that having a JOINT or a MUTUAL Will with their husband or wife is both a possibility and a good idea.  Nothing could be further from the truth.  They are rare, complex and difficult to execute; hence, we do not recommend them.  We suggest that each person make their own Will and that’s it.  Nice and easy.

JOINT WILL

A Joint Will exists where two or more people execute (i.e. sign in front of witnesses) the same document as the Will of both or all of them.  They are very rare.  They are also very problematic.  What happens if one person executes the Will properly (i.e. signs in front of witnesses with testamentary capacity and full knowledge and approval of the factual content of the Will) but the other person doesn’t?  What if one person revokes part or all of the Will dealing with them, but the other person doesn’t?  What if one person amends part of the Will?  Well, the law contemplates solutions for all of these different situations, but it adds unnecessary complications.  Hence, it’s best NOT to have a single JOINT WILL with another person.

MUTUAL WILL

There is no relationship between a JOINT and MUTUAL WILL. There may be one Will involved or there may be multiple Wills involved (the common scenario is two Wills, one for each spouse). A Mutual Will describes a situation where two people enter into an agreement to leave their property to the other on the condition that the second person to die will necessarily then leave all their property of the first to die.  The idea is that when they make Wills, those Wills will be irrevocable (i.e. cannot be revoked).  Each Wills will dispose of property to the other person.  So the idea is that if one person dies, the other person will not revoke their Will.  But here’s the problem: trying to prove the AGREEMENT is not that easy.  Sure, it can be oral or written.  But it may be very hard to prove. There must be an agreement executing their Wills who make provision for one another, there must be an agreement that the survivor will be bound, and there must be an occurrence of the binding event.  If these three requirements are met, a constructive trust is imposed according to the agreement of the parties.

DMC