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Mutual wills are considered a ‘legally binding contract’ between two people that are drafted in terms agreed upon by both parties and cannot be revoked or amended by either party without the agreement of the other. This means that following the death of the first party, the wills are irrevocable and changes can never be made by the surviving party (unless otherwise provided for).
Most commonly, mutual wills are used in circumstances where parties have remarried with children from a former marriage. This is because mutual wills require parties to agree on the beneficiaries, and a surviving spouse cannot disinherit their step-children. In saying this, mutual wills may be made between any two people wishing to combine their estate plan.
Importantly, creating a mutual will does not prevent people from bringing a Family Provision Claim against the estate. This became known in the High Court of Australia decision in the matter of Barnes v Barnes.
It was decided the deceased’s adopted daughter was entitled to make a family provision claim, despite the existence of a valid Mutual Will which expressly passed property of the estate to their son.
Clearly, mutual wills are complex and should not be created without an understanding of the agreement. They should be carefully drafted including considerations of the following:
If you still feel as if a mutual will is suitable to your circumstances, the experienced Brisbane family lawyers team at James Noble Law is here to assist. Contact us on 1800 662 535 or make an enquiry to arrange a free and no-obligation consultation. No-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane.
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