Mutual wills

Summary

Mutual wills are allowed.

Discussion

In Ontario, a will may be revoked as long as the testator has capacity. However, the testator may agree not to revoke his or her will without the consent of the other spouse. There must be clear and satisfactory evidence that there is an agreement not to revoke the wills and not just a loose understanding or a sense of moral obligation. While each party may revoke his or her will, it would be a breach of contract and the Courts may impose damages or a remedial trust. Mutual wills are, however, uncommon in Ontario. In order to ensure clear and satisfactory evidence is present, a written agreement is often entered into by the parties and, in order to ensure enforceability, the same requirements for independent legal advice and disclosure as a marriage contract or cohabitation agreement are often considered.