By Matthew A. Quick In the case of Ernest v Chumley, step-children filed a complaint against their step-mother to determine their rights under a mutual will. A mutual will is generally regarded as one of two reciprocal wills that makes promises regarding the distribution of property upon the death of one of the spouses. This type of will is usually only used in situations where one of the spouses has children from a previous marriage and wants property to be distributed to them.
In this case, the mutual wills did not have any provision controlling the use of property during the lifetime of the surviving spouse. However, when the surviving spouse attempted to transfer proceeds from the sale of the home she owned with the deceased into certificates of deposit held jointly with her current spouse, the court opined that she breached the expressed intent of her mutual will by removing property from her estate.
In essence, the surviving spouse is welcome to use the funds from the estate of the deceased spouse in a situation involving mutual wills. However, the funds cannot be directed outside of the surviving spouses estate. In the interest of honoring the mutual wills, a surviving spouse must keep the funds within her estate.