Agreement not to change mutual wills – an added layer of protection in estate planning

Many of my wills and estate clients are couples who want to ultimately leave their assets to their children. The most common arrangement requested is for each spouse to be the sole beneficiary of the other’s will with the children being the alternative beneficiaries. This structure allows each spouse to benefit from the family assets during their life before the assets pass on to the children. A risk spouses often face in this structure is the possibility of the surviving spouse changing the wills. Motivations for changing the wills can range from alienation from the children to the surviving spouse remarrying. To protect against this, I sometimes advise my clients to create an agreement not to change mutual wills.

What is an agreement not to change mutual wills?

An agreement not to change mutual wills is a contract spouses can create to ensure that the surviving spouse cannot change their will. The agreement states that neither spouse can change the wills without the consent of the other. If one spouse predeceases the other, they become unable to give consent and the surviving spouse is bound by the agreement. This offers a layer of protection ensuring that family assets ultimately go to the beneficiaries both spouses have agreed on.

It is important to note the limits of this agreement. The surviving spouse can still spend the family fortune or give it away while they are alive. The only limit is that whatever wealth that remains when the surviving spouse dies must go to the beneficiaries assigned in the mutual wills.

Risks of agreements not to change mutual wills

The agreement not to change a mutual will is a powerful estate tool available to testators in Ontario. However, this agreement prevents surviving spouses from adjusting their wills to account for changes in their circumstances. Whatever was in the wills at the time of the agreement may be set in stone.

Another risk to consider when drafting an agreement not to change mutual wills is it removes some of the privacy from the will making process. I often tell clients that your will is your last word on Earth and it is a deeply personal document. Therefore I always recommend that my clients seek independent legal advice so they can talk to a lawyer about the consequences of drafting an agreement not to change mutual wills. That private discussion with a lawyer can help individuals explore their legal options confidentially.

The benefits and risks of an agreement not to change mutual wills are substantial and deeply personal. As with all estate planning tools, I advise my clients to take time and carefully consider if this agreement is right for them.

If you are interested in an agreement not to change mutual wills or you have estate planning questions, contact us at info@law365.ca or (647)-494-9599