Mutual Wills: How They Are Created and When a Constructive Trust Will be Imposed

Estate planning often deals with  challenging situations, including the needs of blended families with complicated personal relationships. There are several legal tools that can be used to address complex family situations so that, for example, children of a prior marriage and a second spouse are provided for. Trusts are one such tool commonly used to achieve orderly succession of capital, among other reasons. Mutual wills are another tool that can be considered. Mutual wills commit spouses irrevocably to a joint intention at the time they execute their wills. 

There are various reasons for using a mutual wills agreement, but usually it is used in a second marriage where one or both spouses have children from prior relationships or charitable interests and want to ensure that all children are provided for fairly, or that certain extended family members are provided for or charitable wishes are carried out. A mutual wills agreement can be a useful tool for spouses who have agreed on how to deal with their property on both of their deaths and are comfortable waiving their right to make changes to their individual estate plans in the future, except as may be agreed upon.