In the absence of fraud, a mutual will agreement does not create a trust obligation on the surviving spouse in favour of other beneficiaries of the will.

It has generally been accepted that a mutual will is not a trust. However, does the existence of a mutual will agreement (MWA) create a trustee obligation on a surviving spouse over the assets of the deceased estate, thus providing a caveatable interest over estate assets in favour of other beneficiaries? The recent Queensland Supreme Court case of Forster v Forster1 has provided a detailed analysis of the law on MWAs, finding that, in the absence of fraud, the trust obligations fall on the executors of the surviving spouse when they in turn die, rather than on the surviving spouse.

This paper provides the technical background to the practical aspects discussed in the session.

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