Mutual Will

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Previously, we have explained to you briefly what is a will. You may click this link if you have missed it: The 101 on Wills in Malaysia.

A mutual will is a document that sets forth an individual wish as to the distribution of his assets after passing on.

Unlike a will, a mutual will are wills made by two parties, usually husband and wife, to protect the interest of each other and their children, upon the death of either husband or wife. These wills usually correspond and mirror one another to a certain degree.

The Law on Mutual Will: Hiroto Watanabe v Law Yen Yen & Anor[1]

Brief Summary:

The plaintiff and his wife (the deceased) made a corresponding will that bequeaths their undivided share of two properties that they owned to each other upon their death. They even promised each other that they will not alter the wills. The deceased subsequently executed another will without the knowledge of the Plaintiff. The deceased had bequeathed all her share in the properties to her children (the defendants), leaving nothing for the plaintiff.

The plaintiff brought a claim against the defendants, claiming that the subsequent will is invalid and that the corresponding wills created between him and the deceased should be given effect.

The court favoured the plaintiff and ordered the defendants to hold the properties on trust for the plaintiff in accordance with the terms stated in the corresponding will.

What is Considered Mutual Wills?

In the case, the court pointed out that Mutual Wills are:

  1. Wills made jointly or separately that is agreed by parties beforehand to create an irrevocable interest for ascertained beneficiaries[2]; or
  2. Wills made by two individual where the terms in both of the wills are substantially the same and confer reciprocal benefits to either individual[3].

The case also noted that the said wills must be agreed upon and cannot be revoked without the consent of either individual.

How can it be done?

A will is only considered a mutual will if:

  1. the makers of the will had agreed that in making the mutual will, they intend the will to be irrevocable the moment one of them passes on; and
  2. both the wills were created on the basis stated above.

Furthermore, he pointed out that:

  1. merely making the wills at the same time and having the same term is not a conclusive proof that both parties intended to create a mutual will; and
  2. merely having common intention, expectation or desire is not enough.

As mentioned above, the court must be satisfied that there is an agreement to create a mutual will, and this must be examined on a case to case basis based on the evidence that is available to the court.

Proving a Mutual Will

There are two important factors when preparing a mutual will:

  1. Adhere to the general requirements of a will under Section 3 – 5 of the Wills Act 1959; and
  2. Insert the mutual promise that was agreed upon by both parties into the will[4].

While the latter is not a pre-requisite requirement to have a valid mutual will, the court suggested that it will be wise to have the irrevocability of the mutual promise made between parties to be inserted in the wills to prevent dispute later on.

Can one revoke a Mutual Will?

Yes. The court relied on Lord Camden’s decision in Dufour v Pereira[5]. In that case, Lord Camden held that mutual will can be revoked jointly or separately provided that the person who wishes to revoke the will has notified the other party of such revocation/ intention to revoke.

This is to prevent one party, whom, after reaping all the benefits of the mutual will, subsequently hang the other party to dry, especially when one has acted in their detriment in performing or relying on the agreement made between them in the mutual will.

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[1] [2012] 8 MLJ 202
[2] Ibid, at page 20
[3] Ibid, at page 208
[4] Ibid, at page 207
[5] (1769) 1 Dick 419