Spouses who intend to make their wills together should be attentive to the differences
between mirror wills and mutual wills. Both of these types of wills are generally produced by
spouses who seek to pass down their estate in an identical manner. However, despite having a
shared goal, there are crucial differences that spouses (or two parties) should keep in mind
when creating their will.
Mirror wills simply mean that two parties created individual wills that have reciprocal terms.
A mutual will is a mirror will that goes one step further by including a clause that the surviving
party cannot revoke or change the terms of a will after the death of the other party. In most
circumstances, a court will only find a mutual will to exist when it has been explicitly stated in
writing. Edell v. Sitzer, (2001) 55 OR (3d) 198 (Ont SCJ), a leading Ontario case, established that
a mutual will must:
1. satisfy the requirements for a binding contract and not be just some loose
understanding or sense of moral obligation;
2. be proven by clear and satisfactory evidence; and
3. include an agreement not to revoke the Wills.
Therefore, absent a written clause, the court is hesitant to assert that a will is mutual. In recent
years, however, there has been a push in case law that has challenged the requirement that a
mutual will is explicitly such. In Rammage v. Estate of Roussel (ONSC 2016), the issue at hand
was that there was no written agreement that the wills of the spouses were mutual, but the
court found that there was a verbal agreement between the spouses while they were both alive
that their wills would be mutual (specifically that their estates would be equally divided among
their respective children). The court found, based on corroborating evidence, that the verbal
agreement between the two for their wills to be mutual was sufficient to satisfy the
requirements of a binding contract. Furthermore, neither spouse had objected to each other’s
wills while they were still both alive. Based on this, the court established that their wills had
been mutual.
This case was contentious, generating a lot of discussion among legal professionals, because
it pushed back against the requirement that a mutual will must be explicitly such and gave a
degree of credence to verbal contracts (albeit based on strong evidence). That being said,
individuals should still be cautious as courts will still hesitate, especially when there is a lack of
evidence, to make such assertions. For this reason, couples should do their best to be as clear
as possible when drafting their wills, especially if they have had children outside of their
marriage or common-law relationship. Mutual wills guarantee that a surviving spouse cannot
redirect the inheritance of an estate to the sole benefit of their own children at the expense of
their step-children.
Surviving Spouse’s Claims under the Family Law Act (FLA)
When the Family Law Act (FLA) of Ontario was passed in 1986, the administration of estates
became more intertwined with family law. Previously, only legal claims under Part V of the
Succession Law Reform Act (SLRA), which pertains to the support of dependants, could be made
in regard to the distribution of a deceased’s assets. With the passage of the FLA, however, the
estate trustee became required to consider potential property claims by surviving married
spouses.
The most important property claim, naturally, that can be made by the a surviving spouse is
in relation to the matrimonial home. The matrimonial home, which is considered by s. 18 of the
FLA to be “every property in which a person has an interest and that is or, if the spouses have
separated, was at the time of separation ordinarily occupied by the person,” is treated in a
separate manner upon the death of an owner spouse. Because there is an automatic right of
survivorship, the matrimonial home automatically passes to the surviving married spouse if a
married couple held title as joint tenants. (In Ontario, it is important to note that the
matrimonial home only applies to married couples not common law partners).
Further adding to its unique treatment under the law, a matrimonial home owned by a
spouse in joint tenancy with a third party is deemed to have been severed immediately before
death (FLA, s. 26(1)). The deemed severance happens automatically, even if the surviving
spouse elects to take under the will or on intestacy. This treatment of the matrimonial home is
a sharp contrast to other properties that are held in joint tenancy. Rather than severance, other
properties owned in a joint tenancy are immediately passed down to the surviving joint
tenants. This severance provision guarantees that the surviving spouse will take their one-half
interest in the deceased spouse’s estate to satisfy their equalization claim. Naturally, neither
spouse can sell or encumber an interest in a matrimonial home unless the spouse has waved
away their rights to the home in a separation agreement.
Upon the death of a spouse, a spouse is given an election to make between an equalization
payment or entitlements granted by a will, but not both (FLA, s. 6(1)). If an equalization is
chosen, the spouse will give up their will entitlement, and the will gets administered as if the
surviving spouse has died before the deceased spouse. The deemed severance of the
matrimonial home ensures that a one-half interest will remain in the deceased spouse’s estate
to satisfy the equalization claim of the surviving spouse. The primary intent of a deemed
severance is to preserve the surviving spouse’s right to retain possession of the matrimonial
home against the deceased spouse’s estate, rent-free, for a 60-day period following the death
of the deceased spouse, as provided in s. 26(2). Where there is no deemed severance, the
estate of the deceased spouse would hold no remaining interest against which the right to
retain possession could be asserted.
