New Supreme Court Ruling Regarding Changes To a Mutual Will After The Spouse’s Demise

A new Supreme Court ruling overturns lower courts’ rulings and regulates the application of the “successive heirs” provision of the Succession Law, in instances when a surviving spouse who inherited property by virtue of a mutual will changes his/her will after the spouse’s death.

Mutual wills and the “successive heirs” provision

The freedom of testation – i.e., to draw up a will and leave explicit instructions to whom and how one’s property will be bequeathed after one’s death – is a fundamental, irrevocable right that cannot be restricted by agreements. Every person has the right to change his/her will at any time.

Spouses are allowed to make mutual wills that rely on each other’s wills. These wills often include successive heirs’ provisions, under which one spouse bequeaths his/her estate first to the surviving spouse and then stipulates who will inherit the property after the surviving spouse dies. A classic example of this is a mutual will of two spouses, which instructs that, upon the death of one of them, the estate will pass to the surviving spouse and, upon the surviving spouse’s death, the estate will be divided equally among the couple’s children.

The testator can include various stipulations in his/her will. For example, a testator may instruct that the surviving spouse cannot transfer property to their children during the surviving spouse’s lifetime, but only by inheritance after his/her death, or may instruct in what manner the surviving spouse must maintain the bequeathed property.

Mutual wills, by their very nature, contain a contractually binding contract of mutual reliance between the spouses in that they draw up mirror wills. Were it not for the existence of the mirror wills, one spouse would not be compelled to bequeath his/her property in the same manner as the other spouse. The two spouses essentially jointly decide how to bequeath their property, while relying on each other’s mutual wills.

Thus, the surviving spouse is compelled to bequeath the property inherited from the deceased spouse in the manner stipulated in the deceased spouse’s will, since any other action with this property would violate the testator’s reliance interest.

What happens if, after a couple signed a mutual will, one of them wants to change his/her will?

When a person wants to change his/her mutual will, there are legal implications.

If one of the spouses wants to revoke his/her mutual will while both spouses are still alive, then both wills are nullified, so as not to violate the other spouse’s reliance interest.

If one of the spouses is deceased, revoking the mutual will would violate the deceased spouse’s reliance interest. On the other hand, the surviving spouse’s freedom of testation is a fundamental right that outweighs the reliance interest.

Therefore, in such instances, if the surviving spouse wants to change the mutual will, he/she must return the property received from the deceased spouse’s estate. In other words, if the estate has not yet been divided, the surviving spouse desiring to revoke the mutual will must renounce that portion of the estate that he/she is supposed to receive from the deceased testator. If the estate has already been divided, the surviving spouse desiring to revoke the mutual will must return everything to the estate that he/she inherited by virtue of the mutual will. Only through restitution of what was received from the estate in accordance with the testator’s reliance interest, can the surviving spouse regain its freedom of testation concerning the disposition of its assets.

In such instance, the property bequeathed by the deceased spouse and returned to the estate will be distributed among the deceased’s heirs in conformity with the statutory succession rules as if no will existed. This is because the original will has become null and void (once the first condition is nullified – i.e., the surviving spouse is no longer an heir, then the second condition, which stipulates the successive heirs, is also nullified).

The case at bar and the Supreme Court’s ruling

In a case recently adjudicated by the Supreme Court (Family Court Appeal 1857/24), a couple drew up mutual wills, with a successive heirs provision that stipulated that the property would be divided equally among their four children. The mutual wills also included a clause preserving each spouse’s right to change his/her will.

After his wife died, the surviving spouse changed his will and bequeathed the majority of their property solely to their two daughters (out of their four children).

The Family Court – and the District Court to which an appeal was filed – accepted the later will, after they interpreted the clause in the mutual will that stipulated that each spouse reserves the right to revoke or change the will, as allowing the surviving spouse to bequeath as he deems fit, both with respect to his own property and with respect to the property that he inherited from his wife.

The Supreme Court intervened and ruled – contrary to the lower courts’ rulings – that the provision that allowed the spouse to change his will does not mean that he was also allowed to change his will in relation to the property that he inherited from his wife. In other words, the surviving spouse was allowed to change his will in relation to his own property, but not in relation to the property he inherited from his wife by virtue of the mutual will, which included the successive heirs provision.

Therefore, the Supreme Court ruled that the new will contained an error: the surviving spouse erred in thinking that he was also allowed to change provisions relating to the property that he inherited from his wife. The question deliberated by the court was: What should be the outcome of that error? The Supreme Court justices had differing opinions. While the minority opinion (Justice Stein) was that the later will should be nullified because of the error, the majority opinion (Justices Mintz and Kabub) was that the later will should be retroactively amended in a way that would reflect the property that the surviving spouse would have bequeathed were it not for the error.

The majority opinion held that the surviving spouse’s intention was clear – to bequeath his property to the two daughters named in the later will, and that therefore, the clause bequeathing his property to the two daughters should be upheld. On the other hand, the clause in the later will that bequeathed a small portion of the property to the other two children should be nullified, since this clause in the later will relied on the assumption that they would not inherit anything from their mother’s estate – which was an erroneous assumption. Therefore, the justices ruled that it is impossible to know how the surviving spouse would have drawn up the later will were it not for his erroneous assumption.

Ultimately, the Supreme Court ruled that the estate of the deceased wife would be divided equally among the four children, while the estate of the deceased husband would be divided among the two named daughters.