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Estates - Wills - 'Mutual Wills Agreement'

. Gefen Estate v. Gefen

In Gefen Estate v. Gefen (Ont CA, 2022) the Court of Appeal characterizes 'mutual wills agreements':
(i) No Mutual Wills Agreement

[30] A mutual wills agreement is a binding contract not to revoke wills. A mutual wills agreement between two testators is designed to prevent either from changing their will without the other’s consent.[3] Cullity J. described the doctrine in Edell v. Sitzer (2001), 2001 CanLII 27989 (ON SC), 55 O.R. (3d) 198 (S.C.), aff’d 2004 CanLII 654 (ON CA), 9 E.T.R. (3d) 1 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 372, at para. 58:
a. the agreement must satisfy the requirements for a binding contract and not be just some loose understanding or sense of moral obligation;

b. it must be proven by clear and satisfactory evidence; and

c. it must include an agreement not to revoke the wills.
[31] The agreement may be proven from the words of the will itself or from extrinsic evidence: Albert H. Oosterhoff et al., Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021), at p. 136. Thus, an agreement may be found on the basis of evidence outside the four corners of the will. That said, an agreement should not be inferred from the bare fact that mutual wills were made: Edell v. Sitzer, at para. 73.


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Last modified: 24-11-22
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