Australia: Mutual will agreements and blended families: Are they right for you?

We often are asked to make wills for husbands and wives and de facto spouses and, increasingly, same sex partners

Sometimes, couples mistakenly believe that it is possible for them to make one will that will represent their combined wishes, when of course they need to make their own individual wills (it's one of life's truisms that we are destined to leave this world the way we were born – alone).

In most cases, each partner's testamentary wishes will be almost exactly the same, where perhaps they agree to appoint each other their executor and give their respective estates to each other and then their children.

Not surprisingly, we commonly call such wills "mirror wills" given that they reflect the same wishes of each party.

It's complicated

But we live in an increasingly complicated world and one size estate plan does not necessarily fit all, especially in the case of blended families.

Wills for partners with blended families will not necessarily want "mirror wills" because their interests may be conflicted between members of "their" side of the family.

The wills and estate planning of parties in a blended family situation should be treated with extra special care and skill as the risks of conflict and confusion are so much greater.

A "cookie cutter" approach may be all well and good when everyone's "happy families" but people need to consider what may happen to their assets when one or both partner dies and the effect of these events on their blended families.

Here's a story

If you are particularly concerned to make sure that your assets and those of your partner are distributed in a certain way, you may consider a mutual will agreement.

Mutual will agreements are when two parties agree to make their wills in a certain way and intend to be bound by that agreement, which is usually but not always in the form of a deed (another legal term for a written agreement) signed at the time of making their wills.

Here's a story of a man called "Mike" and his new wife "Carol" each of whom have three children from their first marriages.

They make mutual wills whereby whoever survives the other shall inherit the estate of the other and when they both die their estates shall be divided equally between Mike's children and Carol's children.

At the same time, Mike and Carol sign a mutual will deed, in which they agree that:

  • During their lifetimes, they will not change or revoke their wills without each other's consent; and
  • After the death of one of them, the other will not change or revoke their will.

What are the advantages?

Mike and Carol may well consider that by making mutual wills and entering into a mutual will deed that they're protecting "their" side of the family.

These are the advantages of mutual will deeds:

  • There is greater certainty about how their assets will be treated;
  • Members of the blended families may feel secure in the knowledge that everything will be sorted out whichever party dies first or second;
  • Assets which may otherwise fall beyond the estate of the first party to die (usually the family home if it is in joint names) will be included and dealt with according to the terms of the will of the last person to die.

What are the disadvantages?

As with everything in life and in law, Mike and Carol may be wary of issues as time goes by and everyone's circumstances change.

There are certain disadvantages of mutual will deeds:

  • If Mike dies first, Carol is not restricted in terms of how she can use the asset (eg the family home);
  • Mike's kids will have to wait for Carol to pass away before they get their entitlements (a real issue if Carol is much younger than Mike);
  • If Carol enters into a de facto relationship, new rights are created and Carol's de facto would have a claim against the assets while Carol is alive and on her death;
  • Similarly, if Carol remarries, her will is automatically revoked by operation of law but her contractual obligations under the mutual will deed will remain, muddying the waters further!

A balanced, measured estate plan

As you can see from Mike and Carol's situation, there can be a lot of pitfalls on their journey in life and death. There are no absolute certainties and it really is a question of reviewing your estate plan regularly to make sure everything is set in place the way you want to at that time.

Ideally, Mike and Carol should get their own independent legal advice because of the understandable conflicts or potential conflicts.

It is certainly possible for Mike and Carol to have their mutual will agreement incorporated in the terms of a Binding Financial Agreement under the Family Law Act. In fact, this is highly desirable if they want to protect the assets they each brought into the relationship.

As solicitors, we will be able to give considered advice to Mike and/or Carol about what their balanced, more measured estate plan having regard to the assets that are likely to available in their respective estate.

For example, while the family home is always a bone of contention between opposite sides of blended families, often falling into the lap of the children of the younger second spouse, it may well be that the older spouse has superannuation or life insurance proceeds which may well be enough to satisfy the claims of the children of that spouse.


Yes, it's complicated, all right, and while mutual will deeds have a role in certain situations, they certainly should not be seen as a "set and forget" option because life does not necessarily work out the way intended.

Which is why we advocate obtaining independent specialist legal advice in regards to your estate planning at each step of your life's journey as your circumstances change.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions