It creates a dilemma. On the one hand, courts tend to protect people from the unscrupulous acts of others. On the other hand, the legal rules provide that a person is free to modify or revoke his will whenever he wishes. A testamentary contract can cause potential estate problems. These problems stem from two fundamental principles of wills and treaties: a common will is a single will executed by 2 or more assignors. As a rule, the deceased are spouses. The typical testamentary scheme of a joint will is that when a spouse dies, the deceased spouse`s estate goes to the surviving spouse, and if the surviving spouse dies, the property goes to certain beneficiaries, to whom both spouses, usually the children, agree. A joint will can only be amended with the agreement of the two deceased, but only as long as both are still alive. After death, the surviving spouse can modify or revoke it, without contract or presumption of contract, to modify, revoke or revoke the will, thus thwarting the testamentary intention of the first deceased. In the absence of a treaty that modifies or revokes a common or reciprocal will, many States suspect that they will not revoke or modify a common or reciprocal will, unless both parties agree. The agreement not to amend a mutual will is a powerful estate instrument available to cededicators in Ontario. However, this agreement prevents surviving spouses from adapting their will to reflect changes in their circumstances.
What was in the will at the time of the agreement can be carved in stone. When our clients ask us for these types of agreements (and they often do), we first advise that it is difficult to predict what the surviving spouse`s property, living conditions and even family dynamics will look like twenty, ten or even five years after the death of the first spouse. Will the surviving spouse remarry and spend two or three decades with a new spouse, mix assets and establish new family relationships? Does the happy married couple sitting in our office want to try to stop it if one of them died much earlier than the other? First, the legal details. In fact, the principle is quite simple. Arizona Revised Statutes Section 14-2514 sets out the ground rules: “. A person can enter into a contract to make a will, revoke a will or not revoke, invent or die, only by: Surviving spouses usually have rights over other beneficiaries and perhaps even beneficiaries of the contract. The doctrine of the premarided spouse (in this context means omitting premedation) applies when a surviving spouse remarries, dies, but does not include the new spouse in his or her will. Many jurisdictions find that the deceased spouse intended to include the new spouse in his or her will, but did not do so. According to the doctrine of the spouse, the unmoiled spouse may assume his share of the property of the deceased spouse. In the latest case of Legg and Others v Burton and Others  EWHC 2088 (Ch), the Court found that wills are reciprocal despite a manifestly contrary wording.
The judge also noted that mutual wills might not require a contract and that they might be based on an Estoppel owner. Estoppel is a fair rule that applies in English law, according to which a court can prevent a person or “estop” from going back on a promise they have made. One would think that the two will-makers would have been inclined to make wills under totally different conditions if the binding agreement was never concluded. Any spouse relies on the other so that the other never changes the terms of the will if he/she becomes responsible for the final distribution.. . . .