By The Six Law Group
Imagine being married for 30 years, building a life together, accumulating assets, and making a promise to ensure that all your children will be treated equally after both spouses have passed away.
But what happens when one spouse dies, and the surviving spouse changes their mind?
Joseph contacted our office requesting assistance with preparing a new will. However, his instructions involved more than simply updating his estate plan.
He also wanted our office to prepare a statutory declaration stating that he no longer intended to be bound by an agreement he had previously signed with his late wife, Pamela, promising not to change their wills.
Joseph and Pamela had been married for 30 years. It was a second marriage for both of them, and each had three children from a previous relationship, making a blended family of six children.
During their marriage, Joseph and Pamela prepared mirror wills reflecting their shared intention that, after both of their deaths, their remaining family assets would be distributed equally among their six children, with each child entitled to one-sixth of the estate, subject to the applicable per stirpes provisions.
To reinforce their intentions, they also signed a separate agreement promising not to change the agreed testamentary arrangements.
Under their estate plan, when the first spouse died, the surviving spouse would inherit the deceased spouse's assets. After the surviving spouse's death, the remaining estate would be divided equally among the six children.
Pamela passed away first.
Following her death, all of her assets, including her interest in the matrimonial home, passed to Joseph.
Approximately two years after Pamela's death, Joseph decided that he wanted to change his will.
Instead of dividing his estate equally among all six children, as originally agreed, Joseph now wanted to leave 90% of his estate to his three biological children and only 10% to Pamela's three children.
Joseph also wanted to unilaterally terminate the agreement he had signed with Pamela, arguing that he had not received independent legal advice when the agreement was executed and that language barriers had prevented him from fully understanding its terms and legal consequences.
His position raised several important legal questions:
• Can Joseph legally change his will despite having signed an agreement promising not to do so?
• Does the absence of independent legal advice automatically invalidate the agreement?
• Can language barriers provide sufficient grounds to challenge its enforceability?
• Can Joseph unilaterally terminate the agreement through a statutory declaration, particularly after Pamela has died and he has inherited her assets?
• Could Pamela's children challenge the new estate distribution or seek to enforce the original agreement?
The central issue is not simply whether Joseph can prepare a new will. It is whether doing so would breach an enforceable agreement with his deceased wife and expose his estate to future legal claims.
This situation illustrates one of the most important distinctions in estate planning for blended families: the difference between mirror wills, which are generally revocable, and mutual wills arrangements, which may create binding contractual and equitable obligations.
Why Is Having a Will Important?
A will is one of the most important estate planning documents an individual can prepare.
It allows a person to determine how their estate will be distributed after death, appoint an estate trustee to administer their estate, and establish arrangements for beneficiaries, including minor children.
Without a valid will, an estate is generally distributed according to Ontario's intestacy rules under the Succession Law Reform Act, which may not reflect the deceased person's intentions.
For blended families, this is particularly important. Ontario's intestacy rules do not automatically treat stepchildren as children entitled to inherit from a stepparent merely because of their family relationship.
A properly drafted will can help ensure that children from previous relationships are included in the estate plan, while also protecting the financial interests of the surviving spouse.
What Are Mirror Wills?
Mirror wills are two separate wills, usually prepared for spouses or partners, that contain identical or substantially similar provisions.
For example, a husband and wife may each prepare a will providing that:
• Upon their death, their estate passes to the surviving spouse.
• Upon the death of the surviving spouse, the remaining estate is divided equally among their children.
• If a beneficiary dies before the testator, alternative distribution provisions apply.
Although the two wills reflect a common estate planning intention, each will remains a separate and personal legal document.
This distinction is important because, as a general rule, a person with the necessary testamentary capacity may revoke or amend their own will at any time during their lifetime, provided the applicable legal requirements are satisfied.
Simply preparing mirror wills does not automatically prevent either spouse from changing their estate plan.
For example, after the death of one spouse, the surviving spouse may decide to remarry, change beneficiaries, or distribute their estate differently.
Unless there is a legally enforceable agreement restricting those changes, mirror wills alone generally do not prevent the surviving spouse from making a new will.
Mirror Wills vs. Mutual Wills: Understanding the Difference
Although the terms are sometimes used interchangeably, mirror wills and mutual wills have different legal implications.
Mirror wills reflect similar or reciprocal testamentary intentions but do not, by themselves, create a binding promise that the wills cannot be changed.
Mutual wills, on the other hand, involve an agreement between two individuals concerning the disposition of their estates, with an intention that the agreed arrangement will become binding in the circumstances contemplated by the agreement.
In Ontario, the mutual wills doctrine may apply where there is sufficient evidence of a clear and enforceable agreement not to revoke or depart from the agreed testamentary arrangement.
The existence of similar wills is not enough. The agreement and its intended binding effect must be established.
What Does Ontario Case Law Say?
In Edell v. Sitzer, 2001 CanLII 27989 (ON SC), the Ontario Superior Court considered the mutual wills doctrine and the circumstances in which an agreement concerning testamentary dispositions may be enforceable.
The case illustrates the importance of establishing an actual agreement intended to create binding obligations, rather than relying solely on the existence of similar wills.
Where the requirements of the doctrine are satisfied, equity may impose a constructive trust to prevent the surviving spouse, or their estate, from acting inconsistently with the binding arrangement.
The equitable foundation of the doctrine is also discussed in Birmingham v. Renfrew (1937), 57 CLR 666 (High Court of Australia), an influential authority concerning mutual wills.
Although not binding on Ontario courts, the decision illustrates the principle that equity may intervene to prevent a survivor from acting inconsistently with a binding testamentary arrangement after the first party has died in reliance on that arrangement.
Can a Surviving Spouse Change Their Will After Their Partner Dies?
Generally, yes.
A will is a personal testamentary document that remains revocable during the testator's lifetime, subject to the applicable legal requirements.
However, the legal ability to execute a new will does not necessarily mean that the person is free from contractual or equitable obligations arising from an earlier agreement.
Consider Joseph's situation.
If Joseph and Pamela merely signed mirror wills, without entering into a binding agreement, Joseph may generally change his will.
However, if they also signed an enforceable agreement not to change the agreed distribution, the situation becomes more complicated.
Joseph may still execute a new will, but the new testamentary provisions may conflict with obligations established under the earlier agreement.
After Joseph's death, affected beneficiaries may seek legal remedies to enforce the original arrangement.
Depending on the circumstances, those remedies may include a claim for breach of contract or equitable relief, including a constructive trust.
Accordingly, executing a new will does not necessarily eliminate the legal consequences of the earlier agreement.
Can Joseph Unilaterally Terminate the Agreement Through a Statutory Declaration?
This is one of the most important issues arising from Joseph's instructions.
A statutory declaration is a formal written statement of facts declared to be true before an authorized person.
However, a statutory declaration is not, by itself, a legal mechanism for cancelling an otherwise enforceable agreement.
Joseph may declare that he no longer wishes to be bound by the agreement or that he believes the agreement was invalid when signed.
But expressing that position does not necessarily terminate the contractual or equitable obligations created by the agreement.
Whether Joseph can successfully challenge its enforceability depends on the legal grounds available and the evidence supporting his position.
The fact that Pamela has already died is particularly significant.
If Pamela maintained her will in accordance with the agreement and Joseph inherited her assets under the agreed arrangement, a court may consider those circumstances when determining whether the mutual wills doctrine applies.
Joseph's unilateral declaration cannot automatically eliminate rights that may already have arisen under an enforceable arrangement.
The Importance of Independent Legal Advice
Independent legal advice (ILA) is particularly important when spouses enter into agreements that restrict their future testamentary freedom.
Each spouse should ideally have the opportunity to consult their own lawyer, who can explain the legal consequences of the agreement and identify any potential conflicts of interest.
This is especially important in blended families, where each spouse may have different obligations, expectations, and concerns regarding their biological children and stepchildren.
Independent legal advice can help demonstrate that both parties understood the agreement, entered into it voluntarily, and appreciated the consequences of restricting their ability to change their estate plans.
However, the absence of independent legal advice does not automatically make an agreement invalid or unenforceable.
What Does the Case Law Say?
In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, the Supreme Court of Canada examined the doctrine of undue influence in the context of property transfers and relationships of trust and confidence.
Although the decision does not specifically determine the enforceability of mutual wills agreements, it illustrates why courts may examine the surrounding circumstances when assessing whether a transaction was the product of free and informed decision-making.
A court may consider the absence of independent legal advice together with other relevant circumstances, including inequality of bargaining power, undue influence, unfairness, or a lack of informed consent.
In Joseph's case, the absence of ILA would be relevant, but it would not necessarily be sufficient, on its own, to invalidate the agreement.
What If Joseph Did Not Understand English?
Language barriers can create additional concerns when individuals sign legal documents.
Joseph argues that he signed the agreement without fully understanding its terms or legal consequences because of language difficulties.
However, a language barrier alone does not necessarily invalidate a signed agreement.
Courts will consider the surrounding circumstances, including whether the document was explained or translated, whether the person understood the essential terms, and whether there was any misrepresentation, exploitation, or other legally relevant concern affecting consent.
For this reason, when a client is not proficient in English, lawyers should take appropriate steps to ensure that the client understands the document before signing.
Depending on the circumstances, this may include providing a translated agreement, arranging for a qualified interpreter, or obtaining independent legal advice in the client's preferred language.
These precautions can help reduce the risk of future disputes and provide evidence that the agreement was entered into knowingly and voluntarily.
Can the Agreement Be Challenged as Unconscionable?
In some circumstances, a party may argue that an agreement is unconscionable and should not be enforced.
What Does the Supreme Court of Canada Say?
In Uber Technologies Inc. v. Heller, 2020 SCC 16, the Supreme Court of Canada explained that unconscionability generally requires two elements:
1. An inequality of bargaining power between the parties.
2. An improvident bargain resulting from that inequality.
A language barrier, lack of independent legal advice, or limited understanding of the legal consequences may be relevant to the analysis.
However, these factors do not automatically establish unconscionability.
A court must examine the circumstances existing when the agreement was made, including whether one party was vulnerable and whether the resulting bargain was unduly advantageous to the other.
The fact that an agreement later becomes inconvenient or produces a result that one party no longer prefers is not, by itself, sufficient to establish unconscionability.
In Joseph's situation, the fact that he now wishes to leave a greater percentage of his estate to his biological children does not automatically establish that the original agreement was unconscionable.
The relevant inquiry concerns the circumstances surrounding the formation of the agreement, not merely Joseph's change of intentions following Pamela's death.
Can Joseph's New Will Be Contested?
Yes. A new will that departs from an earlier binding arrangement may give rise to litigation.
However, there is an important legal distinction between challenging the validity of a will and seeking to enforce an agreement concerning the distribution of an estate.
A new will may be validly executed and still give rise to claims based on a prior contractual or equitable obligation.
For example, Pamela's children may argue that Joseph's estate remains bound by the original agreement providing for an equal distribution among all six children.
Depending on the facts, they may seek a declaration, contractual remedies, or the imposition of a constructive trust over assets subject to the agreement.
This does not necessarily mean that Joseph's new will itself is invalid.
Rather, the court may determine that certain property must be administered or distributed consistently with enforceable obligations arising from the earlier arrangement.
Such disputes can be complex, expensive, and emotionally difficult, particularly when they involve children from different relationships.
How Can Blended Families Avoid These Disputes?
Estate planning for blended families requires more than simply preparing two similar wills.
Spouses should carefully consider whether they intend their estate plans to remain flexible or whether they want to create binding commitments protecting particular beneficiaries.
Where the intention is to ensure that children from both families ultimately receive an agreed share, lawyers may recommend additional estate planning arrangements.
Depending on the circumstances, these may include properly drafted mutual wills agreements, trusts, life insurance arrangements, or other estate planning structures.
The documents should clearly address whether the surviving spouse can change beneficiaries, sell assets, make gifts, remarry, or otherwise alter the intended distribution.
It is also advisable for each spouse to obtain independent legal advice and to ensure that all documents are explained in a language they fully understand.
The objective is not simply to prepare valid documents, but to create an estate plan that accurately reflects the parties' intentions and minimizes the risk of future disputes.
Final Thoughts: A Promise That May Survive Death
Joseph and Pamela's story illustrates an important reality of estate planning for blended families.
While individuals generally retain the ability to change their wills during their lifetime, that freedom may be subject to contractual and equitable obligations arising from an earlier agreement.
A surviving spouse cannot necessarily escape those obligations simply by preparing a new will or signing a statutory declaration expressing a change of intention.
Similarly, the absence of independent legal advice or the existence of a language barrier does not automatically invalidate an agreement.
Where spouses have made a binding commitment concerning the ultimate distribution of their estates, the consequences of departing from that commitment may extend beyond the death of the surviving spouse.
For blended families, careful planning, clear documentation, and appropriate legal advice are essential to protecting both the surviving spouse and the intended beneficiaries.
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At The Six Law Group, we assist individuals and families with estate planning, wills, and succession arrangements, including the unique considerations that arise in blended families.
If you are preparing an estate plan, considering changes to an existing will, or have questions about a previous agreement, obtaining legal advice before making changes can help protect your intentions and reduce the risk of future disputes.
Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. The enforceability of mutual wills agreements and the remedies available depend on the specific facts and applicable Ontario law.