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Mutual Wills in Queensland

Wills with the same or similar content made by two different people

Case Summary – Hussey and Gerdei v Bauer and Bauer and O’Neil (2010)

A Mutual Will is a contract entered into were two persons make their Wills pursuant to an agreement as to the disposal of their assets. These Wills may be combined in the one joint document whereby they are classed as a joint Mutual Will or may be two separate documents being Mutual Wills.

The essential factor of a Mutual Will is the agreement between the parties that neither of them can revoke their Will without the consent of the other. This agreement may be in writing or made orally. Where an oral agreement has been reached it will be necessary to prove such an agreement took place.

A Mutual Will may only be revoked where both testators (the persons making the Will) agree to revoke the Will(s). If a party revokes their Will without the consent of the other, this will constitute a breach of contract and it can be argued that the original agreement still stands, and that agreement may be upheld by the Court.

This rule applies where a party to a Mutual Will dies and the surviving party elects to revoke their previous Will and create another Will disposing of their assets different to the original agreement. Here the Court will find the survivor to be holding all relevant property to be disposed of in accordance with the terms of the Mutual Will, not in accordance with the terms of the new Will.

In the recent decision, Hussey and Gerdei v Bauer and Bauer and O’Neil (2010) the Queensland Court of Appeal found that a Mutual Will did exist in the circumstances. In this case husband and wife, Thelma and Walter Bauer each executed a Will on the 22 August 1984. The two Wills were essentially the same apart from the identity of the Executor and Trustees. Thelma and Walter owned two properties, one in Buderim and one in Mooloolaba. In 1992 Walter Bauer died without revoking his Will. In 1995, Thelma executed a new Will. In 1996, Thelma transferred the title in the Buderim property to her daughters. In 1997, Thelma executed a further Will whereby she left the Mooloolaba Unit to her children and the rest of the Estate to Walter’s children.

The two wills signed by Walter and Thelma in 1984 were:

a) apart from the identify of the Executor and Trustees, identical;
b) prepared by the same firm of Solicitor:
c) executed at the same time;
d) executed in the same place.

Walter’s children argued that Walter and Thelma Bauer had agreed to make Mutual Wills and there was an agreement between those two persons not to revoke their Will. Thelma’s children argued that there was no agreement and no Mutual Wills.

A number of principles in respect of Mutual Wills were discussed including:

  • Mutual Wills arise when two persons agree to make Wills in particular terms and agree that these rules are irrevocable and that they will remain unaltered.
  • Substantially similar, even identical, Wills are not Mutual Wills unless there is an agreement that they not be revoked.
  • The making of Wills simultaneously and the similarity of their terms are not enough taken by themselves to establish the necessary agreement.

In this matter, the Queensland Court of Appeal found that Mutual Wills did exist between Walter and Thelma Bauer. In coming to this decision, the Court relied on evidence provided by Walter’s children that in or around 1989, Walter and Thelma Bauer visited each of them advising that they had both made Wills that provide for the surviving party to live in the Buderim property and receive income from the Mooloolaba Unit, and upon that party’s death the houses would be left to all five children in equal shares. The Court found that although the Walter and Thelma did not have the same discussion with Thelma’s children this did not diminish the importance of the evidence provided by Walter’s children.

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Contesting Wills
 — Gerard Malouf & Partners

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