Legal Tip 358: Do Spouses Have to Agree to Wills?

There is no requirement for spouses to have similar wills or to get the permission from each other for the contents of their wills. They do not have to show each other their wills either.


Example

Homer and Marge are arguing. When Marge dies she wants to leave everything to Homer and then to the kids if he has died before here. But Homer wants to leave everything to mother shabubu, leader of a cult Homer has recently joined.

Marge doesn’t like this, but legally she cannot do anything – until after Homer dies. There is no requirement that they must agree.

 

What options does Marge have?
She can contest the will - chances of winning?
Split-up before Homer dies and use family courts?

 

All of those

 

There can be a "Deed of Mutual Wills" made which ties both wills that may be mutually made especially concerning family issues and assets to ensure bloodline issues arent impacted by a surviving spouse rescinding their will by altering it. It then breaks a promise which a court may consider rather than that of the new will. It has pro's and con's and may not be perfect but may be a matter to discuss with a competent estate planning solicitor.

 

The trouble with mutual wills is that one might die soon and the other die 50 years in the future. This makes it inflexible if you cannot change the will, and you will certainly have to with changing circumstances and laws.
There is also the question of who will sue for a potential breach, or even if anyone will even know of it.

I have never recommended one to any clients.

 

I had it once described by a proficient estate plannig solicitor as a useful document for old people who love one another dearly - They are less likely to remarry and change will etc and it may even protect them from dubious claims made by that nurse in the home aftre the other dies or the old lady in the next room when dementia commences etc. It can lock in the old will to a degree.

DOMWs are also usually best structured where the family know of the wills and the mutual nature and have copies. That way they can act as affected beneficiaries to enforce but that assumes old step mum doesnt run off into the sunset and then sure knowledge could be lost and limit claims. Hnce the old people idea I guess. This lawyer would ensure a family meeting was involved as part of the process to give that protective basis. And usually any TTs involved those adult beneficiaries in some capacity.