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Sunday, October 23, 2011

Can your will have a clause that prevents your spouse from changing his/her will?

A reader has sent me an interesting question that I know will be of interest to many of you. Here's the question:

When a husband and wife do their wills, they each have a separate will. My understanding is that either party could go and do a new will without the other spouse knowing, i.e. leaving things to other parties when the spouse thought these things/money were coming to them. This seems highly unfair to the spouse/partner who would be in the dark.  If this is true, can you put a clause in your wills that does not allow a spouse to go change or create a new will without your knowing.

Yes, each person has his or her own document. Yes, either of them could later make changes to their wills without letting the other one know. In fact, I have been consulted by individuals in that circumstance several times. Generally, however, it's a leap of faith between spouses that each of them will make the arrangements they mutually decide on.

If you put a clause in your will that says your spouse can't change his or her own will, it will be completely useless. The only way to do is for husbands and wives both to make wills that contain a clause that neither of them will make new wills without the consent of the other. These are called mutual wills. They create a binding contract between the parties. Should one of them make a new will without the permission of the other, this would most likely be discovered after the death of the person who changed their will. The remaining spouse or the other beneficiaries would then be able to contest the changed will on the basis of the contract that was formed between the husband and wife.

Mutual wills are rare, mostly because of their inflexibility. They simply don't allow for unforeseen circumstances.

For example, a husband and wife make mutual wills leaving everything everything to each other and then to their children. The husband is killed in a car accident and a few years later the wife remarries. Now she has a legal obligation to a new husband, and there might even be more children. The mutual will provision would leave her with a huge legal problem, as she is legally required to make a will looking after any new spouse or children.

If the parties were to divorce, they would both have to agree that the other could change his or her will. If one party is being stubborn or is extremely angry for some reason, the agreement might not be easily obtained.

The other reason they are rare is that a person is often offended when his or her spouse asks that he or she make this kind of written contract. If you think people are offended at being asked to sign pre-nuptial agreements, you should see how they react to being asked to sign mutual wills!

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