Husband and wife had identical wills, but she changed hers after his death to leave out his kids

Husbands and wives usually make wills that leave their estates to each other, and on the death of both of them, to their children (or the children each of them had from previous marriages). If one spouse dies, can the other change the will to leave out some of the beneficiaries? It can feel unfair to leave out someone when it was verbally agreed between the husband and wife not to do so. A reader asked me about this, and my response to her note is below:

"27 years ago my father and stepmother made identical wills naming the same beneficiaries that included her 2 children and my father's 4 children (including me).  27 years later, my stepmother, who never remarried, passed away and left everything to her children. She had changed the will 5 years before. I can't  get out of my head how clear he was that he wanted to take care of my stepmother after his death, but also wanted to make sure that the beneficiaries that they named in their wills before he died, would remain the same after she died. They left everything to each other in their wills that they prepared together. I have a copy of his half of the will but not hers. I have no way of knowing if this was a mutual or mirror will. How would I get a copy of what actually took place at the lawyer's office before he died? I would assume that would include seeing the part that she signed and any lawyers notes?"

This is something I hear about quite often; family members are upset, angry, or at least puzzled when a surviving spouse changes his or her will. However, your step-mother is completely entitled to change her own will whenever she wants to.

You refer to "his half of the will" but that is incorrect. They are two separate documents and each stands alone without reference to the other. His will is not a "half" of anything. A verbal understanding between two people that their wills are going to contain certain gifts is not binding. Wills are not contracts unless they are mutual wills.

You mention that you do not know whether the will you have is a mirror will or a mutual will. I'm glad you know that they are different things, since I have seen an awful lot of people incorrectly use those words interchangeably. Almost all wills made by husbands and wives are mirror wills, meaning that they are pretty much identical in terms of how the estates are to be distributed, and each can change his or her mind after the other has passed away.

Mutual wills are a completely different thing, and are rare. Mutual wills contain a written statement that each of the parties - that is, the husband and wife - agree not to change their wills after one of them dies. They agree together on what is to happen, and they agree that nobody can change it. This can't just be "understood". it MUST be written directly into the will as a clear statement of intention and agreement. Therefore, you'll know by reading the will whether it's a mutual will because it will contain this kind of clause.

One of the reasons that mutual wills are so rare is that life changes for the spouse left behind. In your case, 27 years passed. If your step-mother had remarried, a mutual will could have caused legal problems for her. She would have new legal obligations arising from the marriage and a mutual will would prevent her from meeting those obligations.

Usually when there is a second marriage, both parties wish for at least some portion of their estates to go to their children of the first marriage. In many cases, they want the whole estate to go to their children. There are much better ways of achieving this than by using mutual wills. So not only do mutual wills become obstructive to people, but they are not the best tool for the job in the first place.

Read your father's will carefully to see whether it contains a clear, express agreement that neither he nor his wife will change their wills after one of them passes away. If it is not there, you have no case at all. If it is there, I suggest you take the will to a lawyer who does a lot of wills and estates work for an opinion on what to do. You would have to start a lawsuit against the stepmother's estate, and this could be really tricky if the estate has already been distributed to the beneficiaries.

Getting a copy of the lawyer's notes and of a will that does not name you as a beneficiary would be a huge, uphill battle. If your father's will appears to be a mutual will, however, you would likely see the notes and your stepmother's will during a trial.