Legal Definitions - counter will

A counter will, also known as a mutual will, refers to two separate wills, typically created by two individuals (often spouses, partners, or close family members), where each will contains reciprocal provisions. These wills are usually made pursuant to an agreement between the individuals that neither will be revoked or altered without the consent of the other. The intent is often to ensure a specific distribution of assets, first to the surviving party, and then to agreed-upon beneficiaries after both individuals have passed away.

Here are some examples to illustrate this concept:

• Example 1: Married Couple with Shared Children
  John and Mary, a married couple, want to ensure that if one of them passes away, the surviving spouse inherits all assets. After both have passed, they want their estate to be divided equally between their two children. They each execute a will that mirrors these wishes, and they have a written agreement stating that neither will revoke or change their will without the other's consent.

  Explanation: This scenario illustrates counter wills because John and Mary each have their own separate will, but the contents are reciprocal (mirroring each other's wishes for the survivor and then the children), and they are bound by an agreement not to unilaterally change them. This ensures their shared estate plan remains intact.

• Example 2: Business Partners with a Succession Plan
  Sarah and David are business partners who co-own a successful restaurant. They agree that if one of them dies, their share of the business will pass entirely to the surviving partner to ensure the business continues without disruption. They also agree that upon the death of the second partner, the entire business will be sold, and the proceeds donated to a specific culinary arts scholarship fund. They each draft a will reflecting these terms, with an understanding that these wills are made in consideration of each other and should not be altered independently.

  Explanation: Here, Sarah and David have created counter wills. Each has a distinct will, but the provisions regarding the business are reciprocal, ensuring the survivor inherits the other's share. The underlying agreement to maintain these provisions makes them mutual wills, providing a clear succession plan for their business.

• Example 3: Elderly Siblings with a Family Heirloom
  Sisters Eleanor and Margaret, both unmarried and without children, possess a valuable antique family heirloom. They agree that whichever sister outlives the other will inherit the heirloom, and upon the second sister's death, the heirloom will be donated to a local historical museum. They each draft a will specifying this arrangement, and they sign a separate document acknowledging their agreement not to change this provision without mutual consent.

  Explanation: Eleanor and Margaret's wills are counter wills because they are separate legal documents, yet their terms regarding the heirloom are reciprocal and based on a mutual agreement that restricts independent modification. This ensures the heirloom's ultimate destination aligns with their shared wishes.