Mutual Will Agreements are agreements between two or more people not to alter their wills. A common example are spouses who leave their estate to the survivor, then the balance to their children on the survivor’s death, and the survivor agrees not to alter the will after the other’s death. Though it is possible to find an oral Mutual Will Agreement, the Court requires clear and cogent evidence beyond either the existence of mirror wills between spouses, or the evidence of a disinherited beneficiary alone.
“Clear and Cogent” – The Evidentiary Requirements of an Oral Mutual Will Agreement
It is common for spouses or couples to prepare their wills at the same time. In many cases, these wills include similar or “mirror” terms, such as leaving their entire estate to the other, but, on the death of the survivor, the same beneficiaries (often their children) inherit the estate. These are commonly referred to as “mirror wills.”
An issue that can arise from the above is what happens when one spouse dies. Can the surviving spouse revise their will?
The answer to the above is, generally, the survivor has complete freedom over testamentary disposition and may change their will. Along with this right, they can change the beneficiaries originally set to inherit their estate.
However, the disinherited beneficiaries are not left without recourse. They can claim that the parties who made the mirror wills orally agreed to a “Mutual Will Agreement”. Though this type of claim is tempting for those looking to avoid the consequences of a changed will, significant evidentiary challenges exist with this type of claim.
What is a Mutual Will Agreement?
Before getting into the evidentiary challenges with proving an oral Mutual Will Agreement, it is important to understand what this type of agreement is. A Mutual Will Agreement permits two or more people to enter into an agreement to preserve a will or specific provisions in a will. Specifically, the agreement is that neither party will alter their will without the knowledge of the other. When one of the parties dies, this irrevocably binds the survivor to never revoke his or her will.[1] In other words, the Mutual Will Agreement ensures that the survivor does not subsequently change their will to disinherit someone that the deceased wished to benefit.
The criteria for establishing a Mutual Will Agreement is that, (a) there must be an agreement between the individuals who made the wills, which amounts to a contract at law; (b) the agreement must be proven by clear and satisfactory evidence; and (c) it must include an agreement not to revoke wills.[2] Further, as mentioned above, the Mutual Will Agreement can be oral.[3]
What property is covered by the agreement can vary in the circumstances of each case. It can include an agreement over a specific piece of property, or an agreement that covers all property owned by each of them at the time of the agreement, as well as property acquired after the agreement is entered into.[4]
Once established, the ramifications of these agreements can be far reaching. The survivor, for example, can be found to be subject to a constructive trust concerning the property in question at the time the agreement was made, or when the other person dies. This means that, during their life, they cannot deal with their property in a manner that defeats the purpose of the Mutual Will Agreement. In other words, they cannot try and gift a large portion of their property while alive, amongst other restrictions.[5] If they do, the Court will treat the Mutual Will Agreement as breached and step in to enforce it..[6]
The Evidence Needed for an Oral Mutual Will Agreement
So, what type of evidence does a disinherited beneficiary need to establish a Mutual Will Agreement? Though every case turns on its own facts, the authorities have set out the following principles:
First, a Mutual Will Agreement will not be inferred from the bare fact that mirror wills were made. In other words, just because individuals have mirror wills is not enough to demonstrate a Mutual Will Agreement existed.[7]
Second, the onus to prove the agreement falls on the party alleging its existence (often the disinherited beneficiary). On this point, the Court has stated that the onus is “heavy,” and demands “clear and cogent evidence” of an agreement with “clear and unequivocal terms.” The purpose of this heavy burden is a recognition of the importance of testamentary freedom and the right of an individual to change their will.[8] While the Court does not require higher “quality” evidence, what is required is convincing evidence that overcomes the default assumption that no one would contract away their right to change their own will.[9]
Third, and finally, section 13 of the Evidence Act requires a plaintiff to provide corroborating evidence. They cannot obtain a court judgment based on their evidence alone.[10]
There have been a few cases where an oral agreement was proven. Examples of the evidence that the Court relied on include the following:
- While the reciprocal (or mirror) wills by themselves do not prove that there was a Mutual Will Agreement, their existence has been a factor considered by the Court;[11]
- Evidence of discussions between the two persons who allegedly entered the agreement, specifically their intentions as to what would happen on the death of the survivor. Often, and to be sufficient, this evidence needs to be from those who would not benefit from the existence of such an agreement;[12]
- The context in which the alleged Mutual Wills Agreement was made, such as the relationship dynamics between the two, and how they treated the individuals who are protected by the alleged Mutual Will Agreement. For example, in cases with blended families with children from each spouse, did they treat all children as their own?[13]
- The contents of the new Will that may corroborate the existence of an agreement in some manner. For example, references to the original wills that were made and attempts to achieve some semblance of what was planned in the new will in issue may corroborate the existence of an agreement. [14]
Ultimately, an oral Mutual Will Agreement can be a powerful tool for a disinherited beneficiary, but a tool requiring clear evidence before the Court will enforce it. Anyone seeking to prove such an agreement should proceed with caution and with the benefit of legal advice. More importantly, and for those hoping to avoid these disputes amongst their children, careful planning and clear documentation demonstrating the agreement are essential.
[1] Nelson v Trottier, 2019 ONSC 1657 at para 27.
[2] Nelson v Trottier, 2019 ONSC 1657 at para 24; at para 30
[3] This article does not discuss the impact of section 55 of the Family Law Act, R.S.O. 1990, c. F.3, as it has not yet been fully considered by Courts in Ontario. Specifically, this section requires domestic contracts between those cohabitating, married, or intending to be married must be in writing and witnesses. Early judicial commentary on this point suggests that Mutual Will Agreements are “equitable” agreements that imposes a trust, the terms of which may be implied, which suggests it is not necessarily to be viewed as a traditional contract or agreement intended to be covered by this Family Law Act. See Gefen v Gaertner, 2019 ONSC 6015 at para 145, aff’d 2022 ONCA 174.
[4] Nelson v Trottier, 2019 ONSC 1657 at paras 28, 31, 38.
[5] Nelson v Trottier, 2019 ONSC 1657 at para 39.
[6]Nelson v Trottier, 2019 ONSC 1657 at para 48. Hall v McLaughlin Estate, 2006 CarswellOnt 4284 at para 97.
[7] Gefen Estate v Gefen, 2022 ONCA 174 at para 31.
[8] Gefen Estate v Gefen, 2022 ONCA 174 at para 33.
[9] Gefen at paras 38-39.
[10] Evidence Act, R.S.O. 1990, c. E.23 at s. 13; Jackson v Rosenberg, 2023 ONSC 4403 at paras 106-107.
[11] Rammage v Roussel Estate, 2016 ONSC 1857 at para 51; Hall v McLaughlin Estate, 2006 CarswellOnt 4284 at para 83
[12] Rammage v Roussel Estate, 2016 ONSC 1857 at para 52-53, 56; Hall v McLaughlin Estate, 2006 CarswellOnt 4284 at para 83-84
[13] Rammage v Roussel Estate, 2016 ONSC 1857 at para 54; Hall v McLaughlin Estate, 2006 CarswellOnt 4284 at para 86, 88
[14] Hall v McLaughlin Estate, 2006 CanLII 23932 (ON SC)at para 93