We are seeing increasing numbers of clients who are embarking on
2nd marriages early in life. Often each of the parties to the
relationship has children from a prior marriage. In these
situations two families are merging into one new blended family.
This new blended family presents all new estate planning needs and
Here are some common questions of concern to blended
What will the children of each partner receive from the joint
What will happen to real estate owned as joint tenants?
What happens if one of the parties to the relationship dies and
then re-partners? Are the children of the deceased spouse
A useful estate planning tool in these situations is a Mutual
Will Agreement. In a Mutual Will Agreement, both parties to the
relationship create Wills with terms that are known to the other
partner. They also enter into a separate agreement that neither of
them can make a new Will without the express consent of the other,
even in cases where one of them predeceases the other. The effect
of entering into such an agreement is that it becomes a contract to
which the Will beneficiaries (the children) have a right of
Mike Brady marries Carol Brady. Mike and Carol each
have 3 children – all of whom are over the age of 18,
financially self-sufficient and living independently. Mike and
Carol each bring into the marriage their individual assets, which
they combine with the intention of growing their joint asset pool.
Planning for their future, Mike and Carol each have Wills made
which leave their entire estate to each other and then to all six
of their children in equal shares.
Twenty years pass and Mike and Carol's joint
asset pool has grown substantially because of Mike's
architecture business. Mike then gets quite ill and dies
unexpectedly. What happens in this situation? The answers vary
based on what protections Mike and Carol have put in
Without a Mutual Will Agreement – Carol
would receive 100% of Mike's estate per the terms of his Will.
Now in charge of the entire Brady fortune, Carol would be free to
change her Will at any time after Mike's passing and leave all
of the joint Brady asset pool to her own children exclusively.
Mike's children would receive nothing from Carol's new Will
and they would likely have no recourse against Carol or Carol's
estate upon her death.
With a Mutual Will Agreement – Carol
would still receive 100% of Mike's estate per the terms of his
Will. Carol would not be free to change her Will without the prior
consent of Mike. Assuming that such consent was not given because
of his unexpected death, any variation of the Will by Carol would
be unauthorised. A Mutual Will Agreement cannot stop Carol from
physically changing her Will, but it would give Mike's children
standing to sue her estate for breaching the contractual terms
granting them an interest in the Estate.
Mutual Will agreements are a great way to plan for those in
blended families or for those providing financial planning or
succession advice to clients in blended families. To learn more
about Mutual Will Agreements or other estate planning tools,
contact the Estate Planning team at Watkins Tapsell.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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