The law regulating the area of succession and inheritance in Israel is called the Succession Law, 5725- 1965 (the “Law”). This Law deals with all matters relating directly or indirectly to the area of inheritance and wills.
Mutual Wills have gained legislative consideration with Amendment No.12 of the Law in 2005. The said amendment provides a special legal arrangement for the drafting and revocation of Mutual Wills. Previous to Amendment No. 12, Mutual Wills were developed by the practice of both testators as well as attorneys, however it reached only limited development.
A Mutual Will is a common estate planning tool, which couples draft in order to bequeath their estate to one another and then to third parties, or when they both mutually will their estate directly to third parties.
A Mutual Will can be drafted as two documents or as a single will.
Mutual Will as opposed to a regular will:
The difference between a Mutual Will and a regular will is the fact that it is more difficult to revoke it since it involves two people, as opposed to a regular will which the testator can change throughout his lifetime with no limitations. I will discuss this in more detail further on.
In most cases, couples who create a Mutual Will usually wish to benefit the surviving spouse while ensuring that the joint estate will eventually be transferred to an agreed-upon third party (usually mutual children).
For example, a couple may have a Mutual Will, in which they state that in the event one of them passes away before the other, their entire estate will be transferred to the surviving spouse and upon both of their deaths, their joint children will inherit their estate. A Mutual Will as mentioned, will avoid the fear that the remaining spouse will remarry and transfer or bequeath the inheritance, (that was received by his former spouse), to her/his new spouse and not to the children.
When preparing a Mutual Will, it is important to consider the option of limiting the surviving spouse’s use of the estate or limiting the possibilities to sell the estate. This is in order to ensure that upon her/his death, the heirs next in line, will actually have an estate to inherit as well. An example for such a limitation can be when bequeathing an apartment to the surviving spouse with the limitation of gifting it to third parties. This will ensure that the apartment is transferred to the remaining heirs down the line.
As mentioned above, the decision to create a Mutual Will allows both testators to limit and constrain their actions with respect to each of their ability to change the will in the future.
This advantage may, in certain circumstances, become a disadvantage, especially when the surviving spouse finds herself/ himself in a situation where changing the will is necessary, due to a change in circumstances that the couple didn’t and maybe couldn’t have foreseen when they chose to compose their Mutual Will. For instance, in the event that the heir next in line to inherit has passed away prior to the death of the surviving spouse and has not left any descendants.
Revoking a Mutual Will:
A Mutual Will limits the possibility for one of the spouse’s to change the will, without the knowledge of the other spouse. This is due to the fact that in a Mutual Will (as opposed to a regular will), there is a contradiction between two central principles:
On one hand, the “freedom to bequeath” which includes within it, the freedom of the testator to change his will as he wishes at any given time up until his death.
On the other hand, the reliance of each party on the will that forms the basis of a Mutual Will. Each testator is reliant that during his lifetime, but especially upon her/his death, the surviving spouse will not make a new will and thus deviate from the Mutual Will they had composed together.
Therefore, the Law has made provisions regarding the way one can revoke a Mutual Will:
In general, whilst both testators are alive, the Mutual Will can be revoked by one testator giving written notice of the cancellation to the other spouse. At that point the will is revoked for both of them. The purpose of the notice is to enable the other spouse to make a new will as well.
It is important to note that the submission of a notice by one of the spouses causes the mutual will to be null and void, meaning that it will not be valid even with respect to the second spouse’s instructions. Consequently, in the event that the other spouse does not create a new will on her/his behalf, her/his part of the estate will be distributed upon her/his death according to the Law.
It is important to note that the written notification of the change must be given to the other spouse, in circumstances that leave no doubt that the latter indeed received the notice and understood its meaning.
The courts in Israel have had lengthy discussions deliberating what is considered a “notification” to the other spouse. For example, in a situation in which the other spouse is still alive, but s/he is in a cognitive state that no longer understands the meaning of this notice, nor is s/he able to compose a new will – the message given may have limited or no effect.
In a situation in which a couple has made a mutual will and one of them wishes to change the will when the other spouse is no longer alive – s/he can only do so in a situation where s/he does not inherit the estate of the deceased spouse.
Therefore, in the event that the Mutual Will determines that the estate, in whole or in part, is to be transferred to the remaining living spouse, the remaining spouse will need to withdraw from this inheritance prior to composing a new and different will.
In the event that the inheritance has already been divided and the spouse has already received her/his share, s/he will first have to return to the estate all that s/he inherited prior to composing a new and different will.
It is important to note that a couple can stipulate in their Mutual Will that any one of them can change the Will either during their lifetime without the need to inform the other spouse, and also upon one of their death’s without the need to relinquish the part inherited by the remaining spouse. This will allow the couple to make changes to their will, either during their lifetime or upon one of their death’s, taking into consideration the changing circumstances that require them to do so.
Mutual Wills have their advantages and their disadvantages. One should make a decision regarding your personal needs and family considerations, in order to ensure a will that is best suited for you.
The content of this article is intended to provide a general guide to the subject matter and is not a substitute for legal consultation. Specific legal advice should be sought in accordance with the particular circumstances.