Many couples, as part of their estate planning, contemplate executing mutual wills. For wills to be considered “mutual”, the provisions contained in the wills must be identical to each other, such that each party receives an identical interest from the other or that the remainder of the estate is disposed of in an identical manner[i].

In discussing the evidence required to prove a mutual will, Justice Cullity in Edell v Sitzer states: “the most fundamental prerequisite for an application of the doctrine is that there be an agreement between the individuals who made the wills”[ii]. Justice Cullity states that there is a three-part test that must be met in order for the courts to find that the parties made mutual wills:

  1. The agreement must satisfy the requirements for a binding contract and “not just be some loose understanding or sense of moral obligation”;
  2. It must be proven to be clear and satisfactory evidence; and
  3. It must include an agreement not to revoke the wills.

Where mutual wills may become more complex are situations where couples are part of a blended family or are contemplating forming a blended family.

In Rammage v Estate of Roussel, Alfred Roussel (“Alf”) and Ruth Carol Roussel (“Ruth”) began living together in 1985 and were married in 1997. Both Alf and Ruth had been married previous and each had two children from their prior marriages.

In 1998, Alf and Ruth executed wills in which, each gave all his or her respective estate to the other and provided for an equal division amongst their four respective children on the death of the survivor. Both named one of their respective children to be the estate trustees for their respective estates.

Alf died in 2009. In accordance with this will, Ruth received the residue of his estate (after the payment of estate expenses). Subsequently, Ruth executed a new will in 2010 that contradicted the will she made at the same time as Alf in 1998. In her 2010 will, Ruth left her estate to her two children – excluding her step-children.

Upon her death in 2013, Alf’s children brought an application against Ruth’s estate seeking a declaration that the wills executed by Alf and Ruth in 1998 were mutual wills and as a result, Ruth’s subsequent will was not valid. Alf’s children took the position that Ruth’s estate should be divided equally amongst all four of Alf’s and Ruth’s children, in accordance with the 1998 will.

At the hearing of the application, Justice Reid found that for a will to be interpreted as mutual, there must be evidence of a binding legal contract. The testators did not give their lawyer any impression about their intentions beyond the specific terms of the will.

Justice Reid found that a binding legal contract can be proven with the use of extrinsic evidence (e.g. evidence relating to a contract but not appearing on the face of the contract because it comes from other sources[iii]). In Rammage, there was evidence of a clear verbal contract between Alf and Ruth such that neither could change the effect of their 1998 will without the consent of the other.

There are two important lessons to be learned from Rammage:

  1. Written agreements are important. For couples contemplating making mutual wills, it is important to have direct written communication that executing mutual wills are in fact both of your intentions when it comes to your respective estates. Written agreements should also discuss the scope and ability of one testator to vary a provision in the will (or not) on the death of the other.
  1. It is important for the will drafting lawyer to document whether or not the pair intend the wills to be mutual. For lawyers drafting wills, this case shows that questioning clients about mutuality and having written confirmation of their intentions are important to ensure that those intentions are carried out after their deaths and to avoid unnecessary litigation.

For advice and guidance on Estate Litigation matters, contact the estate litigation lawyers at Eisen Law in Toronto to find out how we can help. Call us at 416-591-9997 or contact us online.


[i] Rammage v Estate of Roussel, 2016 ONSC 1857, para 19
[ii] Edell et al. v Sitzer et al, [2001] OJ No. 2909, para 57-58
[iii] Black’s Law Dictionary 8th ed (West Group, 2004)



Return to Blog