2.3.2018

What do you need to know about the mutual will?

Mutual testament is a combination of two or more wills.

Generally, this is a two-person joint testament, whereby both parties give orders for each other.

Mutual testament is usually made between spouses. On the other hand, the mutual will is possible whoever persons will be concerned (for example, between siblings). Mutual testament usually aims to secure the surviving spouse’s position.

Should both have their own testamentary document or one common document?

The parties may choose whether to draft mutual testament in one or two originals.

The number of originals is relevant, inter alia, for the revoking of the will. The testament can be revoked either wholly or in part, the other spouse still living or after his death.

On the other hand, there is no need for a mutual will to be drafted on two different papers, even though there are two different versions, but both the wills are written on the same document.

The Mutual Testament comes into force

The Mutual Testament must meet the normal form requirements. In other words, the will must be in writing and it must include the signatures of both testators and the signatures of two disinterested witnesses.

Two disinterested witnesses must be simultaneously present and authenticate the will with their signatures. Witnesses must know that the document they are authenticating is a last will although they need not know the detailed content of the testament.

If the original will cannot be found in the death estate of the deceased spouse after his death, it is necessary to find out whether the spouse might have wanted to revoke the will for his part.

The benefits of a mutual testament

Mutual testament is a tool for heritage planning that can, inter alia

  • ensure the surviving spouse’s livelihood
  • reduce the amount of widow’s inheritance tax
  • help to keep the property for descendants
  • influence on size of inheritance shares of the heirs and timing of inheritance distribution e.g. by drafting terms to protect the widow against heirs’ demands for their legal portions.

When the Mutual Will is drawn up without secondary regulations, the property might be transferred completely to the relatives of the surviving spouse according to the wishes of the deceased. Mutual testament can also be made conditional.

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