This article was originally published in the WEL April 2016 Newsletter
When considering the increase in complex blended families in Canada, it is not an uncommon occurrence for children of a previous marriage to contest the Will of a parent that benefits a subsequent spouse or family. Testator autonomy is respected by the Court’s in Ontario, and parents are (generally) allowed to leave their estate to whomever they see fit.
Revising the terms of a Will is not permitted when the parent has executed a “mutual Will”. In the most basic terms, the doctrine of mutual Wills governs when two parties make reciprocal Wills agreeing to dispose of property in a set way where there is a promise to abide by a contractual agreement and not change the mutual Wills without the consent of the other party.
When one party dies having kept that promise, equity will intervene to make certain that the survivor keeps to the bargain and a trust will be imposed on the survivor’s property if he changes his Will and leaves the estate to different beneficiaries. The leading case, Edell v. Spitzer,[1] elicits the theory underlying the doctrine, which is based in fraud: if the survivor does not honour the agreement, he is guilty of fraud on the first testator, and becomes a trustee of the proceeds of the estate.[2]
Mutual Wills are not to be confused with reciprocal or mirror Wills where the terms of the two Wills mirror each other and the testators are free to change or revoke their Wills.[3]
Recently, the Ontario Superior Court of Justice examined the doctrine of mutual Wills in Rammage v. Estate of Roussel.[4] The sole issue on this summary judgement motion before Justice Reid was to determine whether the deceased had made a mutual Will that prevented her from subsequently changing the effect of its terms.
Facts
The deceased began living with her future husband in 1985 after dating him from 1981. Eventually, the two married in 1997. They had both been married before and had two children each from their previous marriages. In 1998 they both executed Wills by which they gave all of their respective estates to each other and provided for an equal division amongst their four children on the death of the survivor. They named one of each of their children from their previous marriages as trustees.
Upon the husband’s death in 2009, the wife received his entire estate. Then, in 2010, she executed a new Will leaving her entire estate to her two daughters. The wife died in 2013 and the husband’s children received nothing. They brought a summary judgment motion seeking a declaration that the Wills executed by husband and wife in 1998 were mutual Wills and that the wife’s estate should be divided equally amongst all four children.
Mutual Wills or Mirror Wills?
Upon reviewing the jurisprudence on mutual Wills, Justice Reid observed that the key issue to be determined was “whether extrinsic evidence supports the presence of a binding legal contract” between the testators that neither party could change the terms of their Will.[5] Proof of a binding contract to establish mutual Wills must be established through “clear and convincing evidence”.[6]Also as a matter of public policy special care must be taken in examining evidence concerning the validity of a Will. In particular, section 13 of the Evidence Act must beconsidered. Self-serving evidence of jilted heirs is not enough to prove an agreement, corroborative evidence is required: [7]
Since neither [the husband] nor [the wife] are alive, the parties must turn to extrinsic evidence to support or negate the intention to make mutual Wills, bearing in mind that the onus of proving the mutual Wills is born by the plaintiffs. That evidence must be considered contextually. I accept that a moral obligation is insufficient, to raise the terms contained in reciprocal Wills to the level of a contractual obligation.[8]
The plaintiffs argued that there was a binding contract, relying on evidence provided by affidavit: the husband and wife acted as if they had a family consisting of four children, the husband was close with the wife’s children and vice versa, the obituary was indicative of a unified family, the husband and wife told the plaintiffs that the four children would be left everything once they both had passed, etc. Also, the daughter of the wife had made a point of telling the plaintiffs that if the wife was to predecease the father, the father could not change his Will and disinherit her and her sister.[9]
The defendants argued that there was no binding agreement that the 1998 Wills could not be changed after the husband’s death. They referred to a cohabitation agreement the parties entered into when they first started living together which purported to keep their property separate. The wife owned a home and told her daughters that they would inherit it. Also, upon the husband’s death the wife did not have a close relationship with his children.[10]
The lawyer who prepared the 1998 Wills recalled no expressed intention or discussion to the effect that the parties could not change the Wills independently of each other. The wife never discussed the terms of the 1998 Wills or the 2010 Will with her children.
Justice Reid noted that:
It is important to consider that the 1998 Wills contained two key components: the provision of financial security for the surviving spouse, and an inheritance for the four children in due course. The first component is consistent with a long-term supportive relationship between spouses, and the second is reflective of the blended family history. It is completely logical that both [the wife] and [the husband] wanted to provide for each other and for their respective children with some certainty. . . There was no behaviour on the part of either [the husband] or [the wife] after 1998 prior to [the husband’s] death indicating that either of them wanted to change their estate plan or would allow the other to do so.[11]
Justice Reid concluded that the plaintiffs satisfied their onus of proving the existence of a verbal contract between the wife and husband based on clear and convincing evidence. That contract was made in “the context of the family constellation at the time and is consistent with the evidence that both [the wife] and [the husband] for their separate reasons, wanted to ensure that a benefit was bestowed on their respective children by the survivor of them.” [12]
Conclusion
Not only is this case instructive on the doctrine of mutual Wills and estate disputes amongst blended families, it is an example of the appropriateness of the matter being disposed of by way of summary judgment. Both parties submitted all available information through affidavits and transcripts from cross-examinations. Justice Reid noted that as a matter of proportionality, it was practical to conclude the matter without a trial since the value of the estate was only in the range of $250,000.00.
—-
[1] Edell v. Sitzer (2001), 55 OR (3d) 198 (SC) (“Edell”).
[2] Edell at paras.61-62
[3] Rammage v. Roussel 2016 ONSC 1857 at para.17-19.
[4] 2016 ONSC 1857 (“Rammage”)
[5] Rammage at para. 20.
[6] Rammage at para. 23 referring to Justice Cullity in Edell at paragraph 58.
[7] Trotman v. Thompson, 2006 CanLII 4953 (ONSC) at paras.36 & 46.
[8] Rammage at para. 49.
[9] Rammage at paras. 25-39.
[10] Rammage at paras. 40-46.
[11] Rammage at para. 56.
[12] Rammage at para. 58.
Menu
Written by: Kimberly A. Whaley
Posted on: May 17, 2016
Categories: Commentary, WEL Newsletter
This article was originally published in the WEL April 2016 Newsletter
When considering the increase in complex blended families in Canada, it is not an uncommon occurrence for children of a previous marriage to contest the Will of a parent that benefits a subsequent spouse or family. Testator autonomy is respected by the Court’s in Ontario, and parents are (generally) allowed to leave their estate to whomever they see fit.
Revising the terms of a Will is not permitted when the parent has executed a “mutual Will”. In the most basic terms, the doctrine of mutual Wills governs when two parties make reciprocal Wills agreeing to dispose of property in a set way where there is a promise to abide by a contractual agreement and not change the mutual Wills without the consent of the other party.
When one party dies having kept that promise, equity will intervene to make certain that the survivor keeps to the bargain and a trust will be imposed on the survivor’s property if he changes his Will and leaves the estate to different beneficiaries. The leading case, Edell v. Spitzer,[1] elicits the theory underlying the doctrine, which is based in fraud: if the survivor does not honour the agreement, he is guilty of fraud on the first testator, and becomes a trustee of the proceeds of the estate.[2]
Mutual Wills are not to be confused with reciprocal or mirror Wills where the terms of the two Wills mirror each other and the testators are free to change or revoke their Wills.[3]
Recently, the Ontario Superior Court of Justice examined the doctrine of mutual Wills in Rammage v. Estate of Roussel.[4] The sole issue on this summary judgement motion before Justice Reid was to determine whether the deceased had made a mutual Will that prevented her from subsequently changing the effect of its terms.
Facts
The deceased began living with her future husband in 1985 after dating him from 1981. Eventually, the two married in 1997. They had both been married before and had two children each from their previous marriages. In 1998 they both executed Wills by which they gave all of their respective estates to each other and provided for an equal division amongst their four children on the death of the survivor. They named one of each of their children from their previous marriages as trustees.
Upon the husband’s death in 2009, the wife received his entire estate. Then, in 2010, she executed a new Will leaving her entire estate to her two daughters. The wife died in 2013 and the husband’s children received nothing. They brought a summary judgment motion seeking a declaration that the Wills executed by husband and wife in 1998 were mutual Wills and that the wife’s estate should be divided equally amongst all four children.
Mutual Wills or Mirror Wills?
Upon reviewing the jurisprudence on mutual Wills, Justice Reid observed that the key issue to be determined was “whether extrinsic evidence supports the presence of a binding legal contract” between the testators that neither party could change the terms of their Will.[5] Proof of a binding contract to establish mutual Wills must be established through “clear and convincing evidence”.[6]Also as a matter of public policy special care must be taken in examining evidence concerning the validity of a Will. In particular, section 13 of the Evidence Act must beconsidered. Self-serving evidence of jilted heirs is not enough to prove an agreement, corroborative evidence is required: [7]
Since neither [the husband] nor [the wife] are alive, the parties must turn to extrinsic evidence to support or negate the intention to make mutual Wills, bearing in mind that the onus of proving the mutual Wills is born by the plaintiffs. That evidence must be considered contextually. I accept that a moral obligation is insufficient, to raise the terms contained in reciprocal Wills to the level of a contractual obligation.[8]
The plaintiffs argued that there was a binding contract, relying on evidence provided by affidavit: the husband and wife acted as if they had a family consisting of four children, the husband was close with the wife’s children and vice versa, the obituary was indicative of a unified family, the husband and wife told the plaintiffs that the four children would be left everything once they both had passed, etc. Also, the daughter of the wife had made a point of telling the plaintiffs that if the wife was to predecease the father, the father could not change his Will and disinherit her and her sister.[9]
The defendants argued that there was no binding agreement that the 1998 Wills could not be changed after the husband’s death. They referred to a cohabitation agreement the parties entered into when they first started living together which purported to keep their property separate. The wife owned a home and told her daughters that they would inherit it. Also, upon the husband’s death the wife did not have a close relationship with his children.[10]
The lawyer who prepared the 1998 Wills recalled no expressed intention or discussion to the effect that the parties could not change the Wills independently of each other. The wife never discussed the terms of the 1998 Wills or the 2010 Will with her children.
Justice Reid noted that:
It is important to consider that the 1998 Wills contained two key components: the provision of financial security for the surviving spouse, and an inheritance for the four children in due course. The first component is consistent with a long-term supportive relationship between spouses, and the second is reflective of the blended family history. It is completely logical that both [the wife] and [the husband] wanted to provide for each other and for their respective children with some certainty. . . There was no behaviour on the part of either [the husband] or [the wife] after 1998 prior to [the husband’s] death indicating that either of them wanted to change their estate plan or would allow the other to do so.[11]
Justice Reid concluded that the plaintiffs satisfied their onus of proving the existence of a verbal contract between the wife and husband based on clear and convincing evidence. That contract was made in “the context of the family constellation at the time and is consistent with the evidence that both [the wife] and [the husband] for their separate reasons, wanted to ensure that a benefit was bestowed on their respective children by the survivor of them.” [12]
Conclusion
Not only is this case instructive on the doctrine of mutual Wills and estate disputes amongst blended families, it is an example of the appropriateness of the matter being disposed of by way of summary judgment. Both parties submitted all available information through affidavits and transcripts from cross-examinations. Justice Reid noted that as a matter of proportionality, it was practical to conclude the matter without a trial since the value of the estate was only in the range of $250,000.00.
—-
[1] Edell v. Sitzer (2001), 55 OR (3d) 198 (SC) (“Edell”).
[2] Edell at paras.61-62
[3] Rammage v. Roussel 2016 ONSC 1857 at para.17-19.
[4] 2016 ONSC 1857 (“Rammage”)
[5] Rammage at para. 20.
[6] Rammage at para. 23 referring to Justice Cullity in Edell at paragraph 58.
[7] Trotman v. Thompson, 2006 CanLII 4953 (ONSC) at paras.36 & 46.
[8] Rammage at para. 49.
[9] Rammage at paras. 25-39.
[10] Rammage at paras. 40-46.
[11] Rammage at para. 56.
[12] Rammage at para. 58.
Author
View all posts