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!

The many types of wills - a dictionary

A will is a will, right? Most of us think we'd know a will if we saw one, but in fact there are several types of wills out there. Whether you're an executor trying to deal with an estate or you're trying to figure out what kind of will you need yourself, the array of possible wills can be confusing. I've often heard and seen the names of the various types of documents being misused, even by professional advisors. Wouldn't it be great if you only had a dictionary to tell you the difference between them? Read on, as I've devised my own little lexicon of wills to help you navigate the world of wills:

Codicil - This is an amendment to a will that is made when there is already a valid will in place. It is intended to make only a small change or supplement to the existing will without invalidating the will. It has the same signing and witnessing requirements as a formal will. Codicils, popular in the days when wills had to be typed individually, are beginning to fall out of favour with the advent of technology that allows us to prepare a new will quickly. They are valid everywhere in Canada.

Formal will, a.k.a. conventional will - This refers to a standard will that is prepared on a computer or word processor and that follows the rules of a valid will. This usually means that the will is signed at the end by the testator (i.e. the person whose will it is) in front of two witnesses who are present at the same time. These are valid everywhere in Canada.

Holograph will - This refers to a will that is 100% in the handwriting of the testator. It doesn't need witnesses, but it must be signed and dated by the testator. Holograph wills are valid in most, but not all, Canadian provinces and territories.

International will - This type of will is relatively rare, as it is only useful to high net worth people who have probatable assets in different countries and who do not choose to prepare separate wills in those countries. The form of an international will is set by a covention that is recognized internationally.

Joint will - This refers to a will which is intended to cover the wishes of two separate people (usually a husband and wife) in one document. It's an old-fashioned concept which was based as much on the wish to save typing time as it was on the lack of women's property rights. Today these wills are almost never prepared in Canada due to the legal complications that often arise when one person dies, leaving the other without a will.

Living will - A living will isn't actually a will at all. It's an American concept, a document in which an individual leaves instructions to cover an end-of-life or "pull the plug" situation. In Canada, living wills form part of health care directives (also known as personal directives, advance care directive and health care proxy, among other variations).

Military will - In general, an individual has to be at least the age of majority to make a valid will. An exception to that rule exists so that personnel of the armed forces, mariners and seaman in the course of a voyage may make a will even if they are under age. This type of will needs to be signed and dated but does not need witnesses. It may be formal or holographic. The phrase "military will" is more of a slang term than a legal term.

Mirror will, a.k.a. reciprocal will - This type of will is usually made by husbands and wives, but may also be made by others. Two mirror wills contain identical provisions, such as a husband and wife both leaving their estate to their children when both parents have died. They may be formal or holographic. I have often seen these wills referred to as mutual wills, but they are not. When a couple has mirror wills and one of them dies, the surviving spouse is free to change his or her will if they so choose.

Mutual will - This is a specialized type of will in which the two people (usually husband and wife) who make the wills specifically agree to a certain arrangement of disposing of their property. The agreement is a contract that is enforceable by law, so when one spouse dies, the other is not legally able to change the will. The agreement has to be spelled out very specifically in the document, or in a separate side agreement that is referenced in the will. These wills are not seen every day, but are still used when appropriate, such as in second marriages when both parties agree to leave their estates to their own children. These wills are almost never holographic as it's almost impossible to get the contractual obligations correct without the help of a lawyer.

Notarial will - This term refers to a will made in compliance with Quebec's Civil Code. The will would be signed in front of a notary and a witness.

If my spouse remarries after my death, will my kids inherit from me?

Much of the time, the Wills made by husbands and wives are mirrors of each other, in the sense that the spouses leave everything to each other, then follow the same distribution for when both of them are gone. The most common plan for when both parents have passed on is to leave most or all of the estate to their children.

Sometimes a spouse in this situation is shocked or dismayed to learn that should he or she pass away, there is absolutely nothing stopping the surviving spouse from re-marrying and leaving everything to the new spouse. The concern is that the new spouse will not be as interested in the children of the original couple, and the children will never inherit the money.

I can see why this thought bothers people. Nobody wants to work and save and invest for years, thinking that the efforts will benefit his/her spouse and kids, just to find out that some other person - and perhaps a completely different set of children - will reap the benefit instead.

Spouses need to understand that when they make mirror Wills as I've described here, the spouse can legally change his or her own Will if he/she wants to. There is a different Wills arrangement that does legally bind the spouses not to change the Wills if widowed; those Wills are known as mutual Wills. Unfortunately the information available is confusing because many advisors and journalists erroneously refer to mirror Wills as mutual Wills. A mutual Will contains a clause that specifically says that neither the husband nor the wife will change the Will should he or she become widowed. It creates a legal obligation on both of them not to change the Wills. Your Will won't have that clause unless you specifically direct your lawyer to include it.

Mutual Wills are rare compared to mirror Wills. I rarely prepare mutual Wills for clients because I feel that doing so doesn't allow for unforeseen but reasonable events in the future. They fit clients in certain circumstances, of course, but are not widely applicable.

There are some other ideas that could be integrated into your estate plan if you are concerned about your spouse re-marrying and not leaving the estate to the children. While many spouses say that they can't even imagine that happening, they need to realize that while it's unimaginable right now while the spouse is alive and they are a family unit, things would be very different without the spouse alive.

One idea is to leave some of all of the estate in a spousal trust that would hold the estate for the lifetime of the surviving spouse. A trust like this would allow for money for the spouse to live on, while protecting the capital intact. On the death of the surviving spouse, the capital would be divided among the children. If you want to explore using trusts, make sure you understand the tax consequences.

Another idea is to leave part of your estate directly to your children, and part to your spouse. If your children are underage, their shares would be held in trust for them until the age you specifiy for inheritance. This would mean that only part of your estate is at risk to be transferred to anyone who married your spouse in the future.

A further idea is to transfer assets to your children while you are alive. This of course depends on whether you need those assets yourself, but it is an idea that is workable for some families.

If you own a business that you want to pass to your children one day, make sure you begin your succession planning process early on to get some plans into place.

I always encourage people to be very open with me about their concerns, their fears and their goals when we are talking about estate planning. Usually there are ways of addressing your concerns, but only if you tell your lawyer what those concerns are.