Mutual Wills – Why They Do Not Always Protect What You Thought They Protected

1. A mutual will consists of two wills that rely upon one another – each depends on the other remaining in force. The title “mutual will” does not determine the matter – the content does.
2. During the lifetime of both spouses: Either spouse may revoke the mutual will, but must provide written notice to the other spouse – and once notice is given, both wills are automatically void.
3. After the death of one spouse: The surviving spouse who wishes to modify the will – must return everything inherited from the deceased spouse. If this has not been done – the new will is invalid.
4. A “silent” mutual will – one that does not expressly stipulate what will occur if one party wishes to modify it – may be interpreted as freely modifiable. Negligent drafting equals partial protection.
5. A mutual will does not protect against remarriage. A spouse who married another person following the death of their spouse – may, under certain circumstances, be able to modify the original mutual will.

What Is a Mutual Will and Why Do Couples Execute One

A mutual will is an arrangement whereby two spouses execute wills that rely upon one another – typically to ensure that the surviving spouse will benefit from all jointly held property, and following their death – the property will pass to predetermined heirs, usually the joint children.

This arrangement is designed to address a genuine problem: in the absence of a mutual will, the surviving spouse may be compelled to share the property with the children immediately following the death – and at times to vacate the residence. The mutual will states: “First inherit from me, and after your death – our children will inherit everything.”

The legal framework was established in Section 8A of the Succession Law, 5725-1965, under Amendment No. 12 which came into force in November 2005. Prior to that amendment, case law was not uniform – and courts decided each case on its merits.

Three Questions Every Couple Must Ask Before Signing

First – does the will include an express reliance provision? Mutual reliance means that each party relies on the other not modifying the will without consent. In the absence of such an express provision, the court may determine that this is a “silent will” – and a silent will is modifiable. The title “mutual will” is insufficient.

Second – what happens if one spouse remarries? The Succession Law does not preclude a spouse who remarried from modifying a mutual will – subject to the restitution conditions. However, proper drafting of the will can significantly limit this scope of maneuver.

Third – does the will regulate the distribution of property following the death of both spouses? A mutual will that states “everything to the heir” but does not specify what will happen to property remaining after the death of both – may lead to distribution according to the Succession Law, and not according to the parties’ wishes.

The Zamir Precedent – The Judgment That Shaped the Law

Prior to the amendment of the law, the guiding precedent was rendered in CA 10807/03 Zamir v. Gamliel. Spouses executed a mutual will. Following the wife’s death, the husband modified his will and bequeathed his property to his new wife – and not to the joint children as stipulated. The Supreme Court held, by majority opinion, that since the original will was “silent” – that is, it did not include an express provision prohibiting modification – the husband was entitled to modify it.

This precedent resonated widely: a will that does not expressly restrict the ability to modify – does not protect.

What Actually Occurred: Two Cases from Case Law

First case: Spouses without children executed wills in 2010 under the title “mutual will.” Each bequeathed to their spouse, and in the event the other was not alive – the estate would be divided between relatives from both sides. The wills included clauses permitting free modification. Following the death of one of them, the surviving spouse attempted to modify the arrangement. Three instances heard the matter. Justice Noam Solberg established a principled position: mutual wills are not a matter of form but of content and substance. Since the wills permitted free modification – there was no genuine reliance, and therefore the restrictions in the law do not apply.

Second case, and more surprising: Spouses, parents of three children, executed a mutual will whereby following the death of both parents – 80% of the property would be given to the son, and 20% would be divided between the two daughters. Following the father’s death, the mother withdrew from the mutual will and signed a new will stipulating equal distribution among the three children. The son appealed. The Supreme Court held that the mother’s withdrawal from the mutual will led to the result whereby the father’s estate would be divided among the children in equal shares – such that the son who was supposed to receive 80%, ultimately received approximately one-third.

Both cases illustrate the same point: drafting matters, but even precise drafting does not guarantee the expected outcome – if all modification scenarios have not been addressed.

What a Functional Mutual Will Looks Like

An effective mutual will must include several components: an express reliance declaration, a definition of permitted revocation during the lifetime of both parties, a definition of what will occur if one party wishes to modify following the death of the spouse, regulation of the fate of the property following the death of both parties, and reference to scenarios such as remarriage, simultaneous death, or an heir who predeceased the testator.

Comprehensive drafting – “we bequeath to one another” – is not drafting. It is a framework that will be tested in litigation.

Prenuptial Agreement and Mutual Will – Two Different Instruments

It is important to remember: a mutual will regulates what occurs after death. It does not regulate the rights of spouses toward one another during their lifetime, and does not protect against divorce. For protection in divorce – a prenuptial agreement is required. The two complement one another and neither substitutes for the other.

Have you planned your estate, executed a mutual will in the past and are uncertain whether it meets the required standard – or are you currently considering executing one? It is advisable to review the text before the question becomes practical.

© Tidhar Tzur Law Firm | This article is for general information purposes only and does not constitute individual legal advice.