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Can you terminate or rescind a mutual Will?

Understanding the process behind changing or cancelling a mutual Will

When two people—often partners or spouses—create mutual Wills, they usually make an agreement to ensure both Wills reflect the same intentions. This is often done to protect each other’s wishes after one person passes away. But what if the circumstances change, and one or both people want to cancel or change their mutual Wills? Is that possible? Here’s what you need to know.
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I. Can You End a Mutual Will Agreement?

Yes, it is possible to cancel or change a mutual Will, but it requires a bit more work than simply changing one person’s Will. Since there’s a contract in place, you’ll need to look at the agreement to figure out how to legally cancel or change it.

Some mutual Will agreements will include details about how they can be cancelled or changed. For example, the contract may say something like:

“Both parties must agree in writing to cancel the agreement and serve notice to each other that they both want to end it.”

If the agreement doesn’t include instructions on how to cancel it, the parties can still end it by agreeing together and signing a new legal document.

II. how do you end a mutual will agreement?

If there’s no clear way to cancel the mutual Will agreement in the original document, the parties can sign a Deed of Variation or a Deed of Family Agreement. This document is a new contract that says:

  • End of the Original Agreement: Both people agree to cancel the original contract, making it no longer legally binding.
  • Revoking the Wills: Each person is free to change or revoke their Will without the other’s approval.
  • Release from Obligations: Both people release each other from any duties or promises made in the original mutual Will agreement.
  • Binding on the Parties: The new document is legally binding on both people and their families.

 

Moreover, including a no-contest clause in your Will could complicate matters significantly when it comes time to apply for probate. It may lead to additional investigations or complex probate proceedings, even if no formal contest is made. This could result in delays, increased costs, and frustration for the intended beneficiaries.

III. Seek legal and financial advice

Before cancelling a mutual Will agreement, it’s a good idea to talk to a lawyer or financial advisor. This ensures that everything is done correctly and that the new agreement is legally enforceable.

IV. What About the Right to Make Claims on the Estate?

Sometimes, people in a mutual Will agreement also want to include a clause that says neither party can make a claim on the other’s estate. This can be done by signing a binding release under Section 95 of the Succession Act 2006 (NSW). This is a special legal process that ensures both parties waive any right to make a claim on each other’s estate, which can help prevent disputes later on.

Example of a Deed of Variation (for cancelling a Mutual Will Agreement)

Here’s an example of a simple legal document (called a Deed of Variation) that can be used to cancel a mutual Will agreement:

DEED OF VARIATION

 

This agreement is made on the [Day] day of [Month], [Year] between:

  1. [Person 1’s Full Name] of [Address]
  2. [Person 2’s Full Name] of [Address]

 

Recitals:

  • A. Person 1 and Person 2 made a mutual Will agreement on [Date of Original Agreement].
  • B. Both parties now wish to cancel the original agreement.
  • C. Both parties have had the chance to seek legal advice and are signing this agreement voluntarily.

 

Terms:

  1. Cancelling the Original Agreement: The parties agree to cancel the original agreement, and it will no longer have any effect.
  2. Revoking Wills: The parties can now change or cancel their Wills without the other person’s permission.
  3. Releasing Obligations: Both parties agree to release each other from any duties set out in the original agreement.
  4. Legal Effect: This document is legally binding on both parties and their families.
  5. Governing Law: This agreement follows the laws of New South Wales, Australia.

 

Signed by:

[Party 1 Name]
[Party 2 Name]

FINAL THOUGHTS

If you’ve made a mutual Will and want to change it, there are ways to legally end the agreement. But because these agreements involve both a Will and a contract, it’s important to make sure you follow the correct legal process. Always seek professional advice to make sure everything is done properly.

If you need help with mutual Wills or want to change an existing Will, reach out to us at admin@allwrightbourke.com.au to schedule a consultation. Our team is here to guide you through the process!

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