If only we could magically see how the decisions we make today play out, we might take some comfort in knowing we made the best decision possible for all those involved. Alas, we have no magic mirror! But we can do our best to research our options and consider each factor that impacts the outcome of our decisions.
One of the most difficult decisions is what will happen with our property on our death. By property, I mean real property, personal property, bank accounts, investments, shares, etc.
Couples in committed relationships usually make decisions about shared property together.
They may decide on a shared plan and decide to execute “reciprocal Wills”. Reciprocal Wills mean that two people leave their estates to each other with a gift to alternate recipient(s) when they are both gone. For example, spouses often choose to leave their estates to each other with a gift over to their children upon the death of the second spouse.
Reciprocal wills could be joint, mirror or mutual, but joint wills (one will made by two people) are not legal in Ontario.
“Mirror Wills” are made by two parties who leave their estates to one another with gift overs to the same beneficiaries. These Wills are sometime called “Just Trust Me” Wills because each party can change their will, and the survivor has to be trusted not to change the arrangement.
“Mutual Wills” are also made by two parties who leave their estates to one another with gift overs to the same beneficiaries, but in addition they agree not to change their Wills without the consent of the other party and not at all after one of them dies. A binding written agreement to this effect usually accompanies these Wills. An oral agreement may also be binding. If there is an agreement to be bound and a surviving party changes their Will, the courts will intervene to ensure that the survivor keeps their promise.
In the 2016 case of Rammage v. Roussel Estate, a surviving spouse decided to change her Will after her husband’s death and to not follow the estate plan the couple had made together. Alf and Ruth each had children from previous relationships when they married in 1997. In 1998, they executed wills. After Alf died in 2009, Ruth changed her Will. After Ruth’s death, Alf’s children realized that she had changed her Will and brought an application to determine whether Ruth and Alf’s 1998 Wills were mutual Wills.
Although there was no direct evidence of a written or oral agreement, the Court determined that the 1998 Wills were mutual Wills after considering the following:
- Alf and Ruth acted like they had a family of four children and all children were treated similarly;
- Alf’s children’s said that Ruth made certain promises after their father’s death;
- the lawyer who drafted the 1998 Wills had no notes relating to Ruth and Alf’s intention; and,
- Ruth’s daughter said that Alf could not change his Will if Ruth had died first.
In other words, the Courts may look to the circumstances after the execution of the Wills to determine whether the Wills are mirror Wills or mutual Wills.
The vast majority of couples in Ontario make ordinary mirror wills. After this case, it is essential to be straightforward with your lawyer about your intended estate plan. Executing mirror Wills may not have the effect you intended. For example, you may have left your investment property to your spouse so she can live off the income. Her will says that it goes to all of the children. Do you want her to be able to leave it all to her favourite charity if she chooses? Or should she be bound to leave at least part of it to the children?
A Court may look to your actions after you execute your Wills to try to figure out whether the two of you meant to be bound to your mutual estate plan. Remember that the cost to your estate of bringing this application would likely far outweigh the cost of the proactive measures you can take prior to your death. Talk to your lawyer about your expectations, even if he or she does not ask, and make sure that you are clear to everyone in the family about the plan, preferably in writing.
Rammage v. Roussel Estate has taught us that the process of determining whether reciprocal wills are mirror or mutual wills depends heavily on the specific facts of each situation. This means that you and your spouse should disclose any agreements or understandings you have with each other when you make wills — mirror wills alone may not make the fairest estate plan of all.