Mr. Tan came to us with a question, “Can me and my wife just write one Will for both of us?”. He had heard that couples could share one will, known as mutual will, which might seem convenient. He brings this question to us seeking clarification.
What is ‘Mutual Will’?
A mutual will is an agreement between two individuals to make their wills together, with the understanding that neither will change or revoke this Will without notifying the other. Upon the death of one party, the survivor is bound by the terms of the mutual will.
Mr. Tan was told that a mutual will is cheaper and simpler. Couples often think that since they usually leave everything to each other first, it makes sense to have a single will to cover both their wishes. The perceived simplicity and cost-saving aspects make mutual wills seem attractive.
Is there any problem with a Mutual Will? Why are we not encouraged to have a mutual will?
Here are some reasons:
- Rigidity
Mutual wills are inflexible. Once one party passes away, the surviving party cannot alter the Will, even if circumstances change. - Potential disputes
If the survivor tries to change the Will, disputes can arise among beneficiaries, leading to prolonged and costly legal procedures. - Change in relationship
Relationships and circumstances may change over time. If the mutual will does not accommodate these changes, it can cause significant issues.
Higher threshold for Mutual Wills
Another important consideration is that the threshold for mutual wills is higher than for individual wills. Mutual will require a higher level of proof to establish their validity, as they are essentially binding contracts between the two parties. This means that any changes to the mutual will can be more complex and difficult to resolve, adding to the potential for legal disputes and complications.
Why individual Wills are better?
Given the potential complications of mutual wills, it is generally advisable for each individual to have their own will. Here’s why:
- Flexibility
Each person can update their will as needed without notifying anyone else. - Clear intentions
Separate Wills clearly outline each individual’s wishes, reducing the risk of misunderstandings and disputes. - Tailored provisions
Each will can be tailored to address specific needs and circumstances, ensuring a more accurate reflection of the individual’s intentions.
Consider Mr. and Mrs. Tan again. If each of them has their own Will, they can independently update their Wills as their circumstances change. For instance, if Mr. Tan decides to leave a specific asset to a charity organisation later in life, he can easily update his Will without needing to notify Mrs Tan. This flexibility helps prevent disputes and ensures their wishes are respected.
Under Malaysian law, while mutual wills are recognized, they are not common due to their potential to cause disputes and complications. It is more practical and safer for each individual to have their own Will to ensure their specific wishes are clearly articulated and can be adjusted as needed.
So, Mr. Tan and his wife, like many couples, might think that having a single Will is simpler. However, due to rigidity and potential for disputes inherent in mutual wills, it is advisable for each individual to have their own separate Will. This approach provides greater flexibility, reduces the likelihood of disputes, and ensures that each person’s wishes are clearly and accurately represented.
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我和妻子可以只写同一份遗嘱吗？
陈先生来向我们了解：“我和我的妻子可以只写一份遗嘱吗？”。他听说夫妻可以共享一份遗嘱，也就是所谓的‘共同遗嘱’，这似乎很方便。为此他来寻求我们的意见。
什么是“共同遗嘱”?
共同遗嘱是两个人共同立下的遗嘱，双方约定不会在没有对方的同意下修改或撤销这份遗嘱。在其中一方去世后，尚存活的那一方必须遵守共同遗嘱里的条款。
陈先生听说共同遗嘱更便宜且简单。夫妻通常认为既然他们通常会先把所有财产留给对方，那么一份遗嘱就可以涵盖双方的意愿。这样简化和省钱的观念让共同遗嘱看起来很有吸引力。
共同遗嘱有什么问题吗？为什么不鼓励写共同遗嘱?
以下是一些原因：
- 缺乏灵活性
一旦立下共同遗嘱的其中一方去世，尚存的那一方不能修改遗嘱，即使情况发生了变化。 - 潜在争议
如果尚存的一方试图更改遗嘱，可能会引发继承人之间的争议，导致漫长且昂贵的法律程序。 - 关系变化
关系和情况可能会随着时间的推移而改变。如果共同遗嘱不适应这些变化，可能会导致重大问题。
共同遗嘱的更高要求
另一个重要考虑因素是共同遗嘱的法律要求比个人单独的遗嘱更高。共同遗嘱需要更高的证明标准来确认其有效性，因为它们实际上是两个人之间的协议。这意味着对共同遗嘱的任何修改都可能更加复杂，从而增加了法律争议和复杂性的潜力。
为什么建议每个人写自己的遗嘱？
鉴于共同遗嘱的潜在复杂性，我们通常建议每个人都分别写自己的遗嘱。原因如下：
- 灵活性
每个人都可以根据自己的想法来更改遗嘱，不需要通知其他人。 - 明确意图
单独的遗嘱可以清楚地列出每个人的意愿，减少误解和争议的风险。 - 量身定制的条款
每份遗嘱可以根据个人的具体需求和情况进行调整，更准确地反映自己的意愿。
再以陈先生和他的妻子为例。如果他们各自有自己的遗嘱，他们可以根据自己的情况来更新遗嘱。打个比方说，如果陈先生后来决定将他的其中一个资产捐给某个慈善机构，他可以轻松地更新自己的遗嘱，不需要通知陈太太。这种灵活性有助于防止争议，并确保他们的意愿可以被遵循。
在马来西亚的法律下，虽然共同遗嘱被承认，但是因为潜在的争议和复杂性，共同遗嘱并不常见。为了确保个人的具体愿望可以清楚地表达并根据需要进行调整，拥有各自的遗嘱更为实用。
