By Darryl Browne -
Key decisions
- Abbott v Abbott [2025] WASC 30, Mills v Dodds [2025] NSWSC 396, Knespal v Knespal [2025] NSWSC 464, Perton v Walters [2025] VSCA 133 and Butler v Britt Helena Butler as executrix of the estate of Colin Armitage Butler [2025] WASC 181 (testamentary contract)
- Earl v Walkom (In The Estate of Walkom (Deceased)) [2025] SASC 71 and Earl v Walkom (No 2) [2025] SASC 91 (will construction and costs)
- ASIC report (superannuation)
- Anne Braithwaite as executor of the estate of Mervyn William Charles Braithwaite (Deceased) [2025] SASC 26 (survivorship)
- Vines (Trustee), in the matter of Taylor (Deceased) v Bosnyak [2025] FCA 436 (bankruptcy)
Careful drafting needed for mutual will agreement
To be useful, a mutual will agreement needs to be drafted with careful attention to the parties’ preferred outcome, possible future situations and the law. A recent example of a mutual will agreement appears in Abbott v Abbott [2025] WASC 30 (Howard J) and illustrates the pitfalls of inadequate drafting.
Ken Abbott had three children by his first marriage. His second marriage was to Shari. She had one child from a previous relationship. They had no children together. Twenty years into their marriage, Ken and Shari made mirror wills and a mutual will agreement (‘Agreement’). As Shari survived Ken, the main part of the Agreement provided:
‘1. In consideration of my husband Kenneth executing a Will in the form set out in Schedule One of this Agreement and agreeing to act in such a way that property affected by this contract does devolve to:
1) Kenneth’s daughter NORELLE ANITA ABBOTT;
2) Kenneth’s daughter LUANA ELISE ABBOTT;
3) Kenneth’s son BRYCE DESMOND ABBOTT; and
4) my son MATTHEW DANIEL ABBOTT;
(together called “our children”) in the manner and proportions set out in the terms of that Will, unless I consent, or our children (to the extent to which their interests are affected) or their legal personal representative consents in writing to his acting otherwise,
I, Shari agree:
a) to execute a Will in the form set out in Schedule Two; and
b) to act in such a way that property affected by this contract does devolve to our children in the manner and proportions set out in the terms of that Will, unless Kenneth during his lifetime, or thereafter all of our children (to the extent to which each of their interests are affected) or their respective legal personal representative consents in writing to my acting otherwise.’
