New Supreme Court Ruling on Changes to a Mutual Will After Spouse’s Death
Summary
A new Supreme Court ruling overturns the lower courts’ decisions and clarifies the application of the “successive heirs” provision of the Succession Law when a surviving spouse who inherited property under a mutual will changes their will after the other spouse’s death.
Mutual Wills and the “Successive Heirs” Provision
The freedom of testation—the freedom to draw up a will and leave explicit instructions regarding to whom and how one’s property will be bequeathed after death—is a fundamental, irrevocable right that cannot be restricted by agreements. Every person has the right to change their will at any time.
Spouses may make mutual wills that rely on each other’s wills. These wills often include successive heirs provisions, under which each spouse bequeaths their estate first to the surviving spouse and then stipulates who will inherit the property after the surviving spouse dies. A classic example is a pair of mutual wills providing that, upon the death of one spouse, 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.
A testator can include various stipulations in a 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 death, or may specify how the surviving spouse must maintain the bequeathed property.
Mutual wills, by their nature, involve a contractually binding relationship of mutual reliance between spouses who draw up mirror wills. Without the mirror wills, one spouse would not necessarily be compelled to bequeath their property in the same manner as the other. The spouses essentially decide together how to bequeath their property, relying on each other’s 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 doing otherwise would violate the testator’s reliance interest.
What Happens If a Spouse Wants to Change Their Will?
When a person wants to change a mutual will, there are several legal implications.
If one spouse wants to revoke their mutual will while both spouses are still alive, 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, if the surviving spouse wants to change the mutual will, they 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 must renounce the portion they are supposed to receive from the deceased testator. If the estate has already been divided, the surviving spouse must return everything they inherited under the mutual will. Only by returning what they received from the estate, in accordance with the testator’s reliance interest, can the surviving spouse regain freedom of testation concerning the disposition of their assets.
In that instance, the property bequeathed by the deceased spouse and returned to the estate will be distributed among the deceased’s heirs under 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—the second condition, which stipulates the successive heirs, is also nullified.
Supreme Court 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 stipulating 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 their will.
After his wife died, the surviving spouse changed his will, leaving the majority of their property to two of their four children: their daughters.
The Family Court and, on appeal, the District Court accepted the later will. They interpreted the clause reserving each spouse’s right to revoke or change the will as allowing the surviving spouse to bequeath both his own property and the property he inherited from his wife as he saw fit.
The Supreme Court intervened and ruled, contrary to the lower courts, that the provision allowing the surviving spouse to change his will did not allow him to change it with respect to the property he inherited from his wife. In other words, he could change his will with respect to his own property, but not the property he inherited from his wife under the mutual will, which included the successive heirs provision.
The Supreme Court therefore ruled that the new will contained an error: the surviving spouse mistakenly believed that he could also change provisions relating to the property he inherited from his wife. The question before the court was what should follow from that error. The justices differed in their opinions. Justice Stein, in the minority, held that the later will should be nullified because of the error. Justices Mintz and Kabub, in the majority, held that it should be retroactively amended to reflect the property the surviving spouse would have bequeathed had he not made the error.
The majority held that the surviving spouse’s intention was clear: he wanted to bequeath his property to the two daughters named in the later will. The clause doing so should therefore be upheld. By contrast, the clause leaving a small portion of the property to the other two children should be nullified because it was based on the erroneous assumption that they would inherit nothing from their mother’s estate. The justices ruled that it was impossible to know how the surviving spouse would have drafted that clause had he not made this assumption.
Ultimately, the Supreme Court ruled that the deceased wife’s estate would be divided equally among the four children, while the deceased husband’s estate would be divided between the two named daughters.