When I see a couple to take instructions for their Wills, and they each have children to a previous relationship, it is common for them to gift:
• everything to their spouse; and
• if their spouse has died, equally between their children and stepchildren.
Clients are often surprised when I highlight that if they give everything to each other, the surviving spouse is free to change their Will – and potentially exclude the stepchildren.
The disappointed stepchildren may challenge this, but litigation is costly and time consuming.
One strategy to prevent the surviving spouse from changing their Will is to prepare ‘Mutual Wills’. This involves spouses entering into a contract not to change their Wills after one dies, so their original mutual intentions remain in place.
Contracts in writing are much easier to prove. However, a contract can be made verbally. In a recent Mutual Wills case, the Court upheld a verbal contract between spouses made some 30 years before the last spouse died. The surviving widow was ‘locked in’ to that agreement.
There are advantages and disadvantages to Mutual Wills and careful consideration should be given before becoming ‘locked in’ to the division of your estate.