A mutual will is a will made by two people together, typically spouses, in which each person’s testamentary provisions are linked to the other’s. Understanding the special rules that govern mutual wills is important for anyone considering this estate planning approach.
What Makes a Will Mutual?
A mutual will is more than two people who happen to make wills with similar provisions. A mutual will involves an agreement between the testators about the terms of their wills and typically creates obligations that restrict each party’s ability to change their will unilaterally.
The mutual character of the will – the interdependence between the two testators’ provisions – is what distinguishes it from two separate wills.
Common Structure of Mutual Wills
A typical mutual will provides that: each spouse leaves everything to the other on first death, and after the second death, the entire estate passes to the couple’s children or other designated beneficiaries. This ensures that the surviving spouse is provided for while also ensuring that assets ultimately pass to the couple’s intended beneficiaries.
The Binding Effect and Right to Change
Israeli law has specific rules about when a party to a mutual will can change their provisions. While alive, each testator generally retains the right to change their will and must simply notify the other party of any changes. However, after one spouse dies and the other inherits under the mutual will, the surviving spouse’s right to change the will becomes restricted.
Practical Implications for the Surviving Spouse
A surviving spouse who inherited under a mutual will must understand their obligations. In some situations, they may be legally restricted from changing the provisions that will ultimately pass assets to the couple’s joint beneficiaries.
This means the surviving spouse cannot simply leave the inherited assets to a new spouse or other people they wish to benefit if that would conflict with the original mutual will.
Planning Considerations
Mutual wills offer benefits – coordinated estate planning and protection of the ultimate beneficiaries – but also create legal complications. Before entering into a mutual will arrangement, both parties should thoroughly understand the implications with legal advice.
