Hull & Hull LLP
By David M Smith
October 2nd, 2025
It is crucial for individuals to fully understand the significant implications and constraints of mutual wills before committing to them.
Mutual wills are a distinctive estate planning tool designed to ensure that assets are distributed according to a shared plan. Unlike standard wills, mutual wills involve a binding agreement between two or more parties, typically spouses or partners, to make identical or similar wills. Under this agreement, each person executes a will in a particular form and, most importantly, agrees not to revoke it without the other’s consent.
Mutual wills may be appropriate for couples who have children from previous relationships and wish to ensure that their respective children inherit specific assets. Mutual wills can also be suitable for couples who want to ensure that their estate is distributed in a particular way, regardless of future changes in circumstances.
However, it is crucial to understand the legal implications and constraints associated with mutual wills.
Once one party passes away, the surviving party is generally bound by the terms of the mutual wills agreement. This means that the surviving party cannot unilaterally alter the distribution of assets, even if their circumstances change.
In Canadian law, the common law has recognized and emphasized the importance of testamentary freedom. Accordingly, it is a fundamental principle that no will is inherently irrevocable.
However, when parties have executed a mutual wills agreement, any subsequent attempt by the surviving party to alter the existing will or to create a new one, may lead to the imposition of a constructive trust on the survivor’s estate. This equitable remedy serves to uphold the survivor’s commitment to the deceased, ensuring that the estate benefits those designated in the mutual wills agreement.
