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Mutual Wills v. Mirror Wills

by Robin Spurr

Robin Spurr recently presented at the Ontario Bar Association’s program entitled “Managing Family Conflicts in Estate Administration”.  The following is Robin’s commentary on the mutual will doctrine and how it was applied in two recent decisions; Rammage v. Roussel Estate and Lavoie v. Trudel.

The doctrine of mutual wills is not widely understood and is often conflated with the legal concept of “mirror wills”.  Mirror wills are wills made by two individuals, usually spouses, which contain reciprocal terms.  Most often, the wills say something to the effect of everything to my spouse, if he or she should predecease me, then to my children.

A mutual will agreement is when two individuals (again, usually spouses) make mirror wills, but do so pursuant to a binding agreement to dispose of their combined assets in an identical manner, regardless of who predeceases whom.  Not only do the wills have to have reciprocal terms, but there must also be a binding legal contract between the testators that the survivor of them will not be permitted to revoke their will after the first testator has died.  The legal repercussion of such an agreement is the imposition of a constructive trust on the survivor’s estate in favour of the ultimate beneficiaries, as agreed to in the mutual wills.

Mutual will agreements are often entered into in blended family situations where each spouse has children from a previous relationship and each one wants to ensure their children receive an equal benefit from the family property, regardless of which spouse dies first.

The case law is consistent that in order to make a finding of a mutual will agreement, it must a) satisfy the requirements of a binding legal contract; b) it must be proven by clear and satisfactory evidence; and c) it must include an agreement not to revoke the wills.

This last requirement is perhaps the most important, and the one that is not always understood, as we will see in the discussion of the two cases.  It is not merely enough for individuals to agree to distribute their estates a certain way; they must also agree that such distribution is irrevocable by the survivor.  Meaning, that after the first person dies, the survivor cannot change the beneficiaries.

Now let’s turn to how this doctrine was applied in two different superior court cases.

The facts of the cases are very similar.  Both cases are situations of blended families wherein both parents had children from previous relationships.  In these cases, the surviving spouse changed their will after the first spouse died, to benefit their biological children to the detriment of the step children.  The step children then commenced actions to invalidate the last will of the surviving spouse on the basis that the previous wills constituted a mutual will agreement and were therefore incapable of revocation.

In both cases, a husband and wife made mirror wills which had reciprocal terms.  There was no indication on the face of the wills that they were meant to be mutual or that there was an agreement that they were irrevocable.  The courts therefore had to look to extrinsic evidence to determine whether a verbal agreement had been made between the spouses.

The court in each case took differing views on the evidence required to establish the existence of mutual wills, and each case had a different result to the inquiry into the existence of a mutual will agreement.

Lavoie v. Trudel

In the case of Lavoie and Trudel, the deceased and his wife, Lucien and Madeleine, made mirror wills in 1983.  The wills left everything to each other, if alive, and in the alternative their entire estate would be left to Madeleine’s two children.  After Madeleine died, Lucien revoked that will and made a new one in which he left his entire estate to his four biological children, completely cutting out Madeleine’s two children, with whom he actually had a very close relationship.

The plaintiffs (Madeleine’s two children) claimed that the 1983 wills were in fact mutual wills and therefore Lucien was prohibited from revoking his will and designating new beneficiaries of his estate.  The defendants argued that the 1983 wills were only mirror wills and therefore capable of revocation.

In its endeavour to determine whether Lucien and Madeleine had entered into a mutual will agreement in 1983, the court considered the evidence required to establish such an agreement.

Justice Gareau found that Lucien and Madeleine made mirror wills in 1983, but that there was no documentary evidence that they were meant to constitute mutual wills.  There was nothing on the face of wills, nor any collateral written agreement.  Therefore, any agreement made between them would have had to have been verbal.  In considering whether such an agreement existed, the court followed the decision of Justice Cullity in Edell v. Sitzer.  That is, that only clear and satisfactory evidence of a binding legal contract can establish an agreement between the testators.  A loose understanding or sense of moral obligation will not suffice.

The court heard evidence from the plaintiffs, as well as third parties who knew Lucien and Madeleine.  The evidence was consistent that Lucien and Madeleine intended to gift their estates to the plaintiffs.

While there was evidence presented by the plaintiffs that their mother had always told them that she had made arrangements for their inheritance, and that those arrangements were permanent, the court found this evidence to be self-serving.  And even if true, it appeared to be more of a directive to Lucien not to change his will rather than indicating a legally binding agreement between Lucien and Madeleine.

The court therefore found that, while the evidence suggested that Lucien and Madeleine intended for their estates to be distributed in a like manner in accordance with their 1983 wills, there was insufficient evidence of a binding legal contract not to revoke these 1983 wills.

The court therefore found that the 1983 wills were not mutual wills, and that Lucien was capable of revoking his will in favour a new one after Madeleine’s death.

Rammage v. Roussel Estate

The next case of Rammage v. Roussel Estate, has very similar facts.  The deceased was Ruth, who survived her husband, Alf who had died several years before her.  The plaintiffs were Alf’s children, and the defendants were Ruth’s children.

Ruth and Alf made mirror wills in 1998.  The wills left everything to each other, and otherwise to the four children equally.  Alf died in 2009, and in 2010 Ruth made a new will leaving her estate exclusively to her two biological children.

In making a determination on the existence of a mutual will, the court heard evidence from the parties regarding their parents’ intentions and reasons for making the estate plans that they did. The evidence of the plaintiffs was that they were a cohesive happy family, without distinctions based on parentage and that Ruth and Alf had discussed wanting to leave their estate equally to their four children.

On that basis, the court concluded that Ruth and Alf always intended to distribute their estates in accordance with the 1998 wills, and that there was a legally binding verbal contract between Alf and Ruth that neither of them could change their will without the consent of the other.  The court found that the wills made sense in the context of the family constellation and that the evidence was consistent that both Ruth and Alf, for their separate reasons, wanted their estates to be distributed pursuant to the terms of the 1998 wills, regardless of who died first.

What was missing from the court’s decision in Rammage was evidence that Ruth and Alf, in addition to agreeing to the manner in which their wills would direct the distribution of their estates, had a legally binding contract not to revoke those wills.  Without such a finding, wills cannot be found to be mutual wills.

Rather than making a finding that there was an actual agreement not to revoke, the court relied more on a finding that Ruth and Alf agreed to distribute their estates pursuant to a certain agreed upon scheme as set out in the 1998 wills.  This is clear from the court’s unusual step of finding that the existence of the 1998 wills themselves were corroborative material evidence to the plaintiff’s claim of a legally binding agreement between Alf and Ruth, pursuant to section 13 of the Ontario Evidence Act.

There is no indication in the reasons delivered by the court that any evidence was considered with respect to the agreement not to revoke.  Wills by their innate nature are revocable, subject to a legal obligation to the contrary.  There was no indication on the face of the wills that they were irrevocable, and no finding by the court that there was evidence of a verbal contract not to revoke.  The wills, at their best, are evidence of an agreement to distribute a certain way, but are not evidence of an agreement not to revoke them.  The wills themselves cannot be corroborative material evidence of a mutual will agreement pursuant to Section 13 of the Evidence Act.

There was, therefore, insufficient evidence before the court for a finding that the wills of Ruth and Alf were mutual wills.


Despite the facts and the evidentiary record being quite similar in both of these cases, it is interesting that the results were so different.  The main difference between these two cases was what the court considered to be the necessary content of the agreement between the two testators.  In Lavoie, the court looked for evidence that the testators had made a legally binding contract that the survivor of them would not revoke their will.  In Rammage, the court looked for evidence that the testators made a legally binding contract to distribute their estates in an identical manner.  In the latter case, evidence that the wills were irrevocable was missing from the court’s decision.  This is important because irrevocability is a crucial element of mutual wills.  Furthermore, relying on the wills themselves as corroborative evidence sets a dangerous precedent.  Any time spouses make mirror wills, which is often the case, any beneficiary who claims that mom and dad alluded to a loose understanding that their estate would be distributed a certain way, would have sufficient evidence to prove a mutual will.

As the judge in Lavoie quite aptly pointed out, there is good reason that the law insists on clear, cogent and compelling evidence to find that there is a legally binding contract of mutual wills.  A finding that a will is a mutual will, and therefore incapable of revocation, restricts the testamentary freedom of the testator.  Testamentary freedom is a deeply entrenched common law principle and should not be interfered with lightly.