Peter Lenzi and Lena Lenzi owned a condominium together. They were married, and it was the second marriage for each of them. They owned the condominium as joint tenants, meaning that on the death of one, the title passed to the survivor.
They made wills together. Mr. Lenzi’s will had a provision that if he outlived Mrs. Lenzi (in which case he would own the condominium as the survivor), a one-half interest would go to Lena Lenzi’s niece and nephew on his death. Similarly, Mrs. Lenzi’s will provided that if she outlived her husband, a half-interest would go to his daughter, Lorraine Brewster, on Mrs. Lenzi’s death.
Peter Lenzi passed away before his wife. Mrs. Lenzi arranged through a lawyer to have the condominium transferred into her name as the survivor. Ms. Brewster was the executor of Mr. Lenzi’s will. When Mrs. Lenzi’s lawyer transferred the title to the condominium into Mrs. Lenzi’s sole name, he wrote to Ms. Brewster’s lawyer and advised that Mrs. Lenzi and Mr. Lenzi intended that the survivor of them would leave a half-interest to the intended beneficiary of the first to die. He further advised that Mrs. Lenzi intended to honour that arrangement by leaving a half-interest in the condominium to Ms. Brewster.
Mrs. Lenzi later changed her mind, and made a new will in which she did not make any provision for Ms. Brewster. Somehow Ms. Brewster found out about the will.
Ms. Brewster sued Mrs. Lenzi, alleging that Mrs. Lenzi and Mr. Lenzi had a mutual will agreement, and that Mrs. Lenzi was bound by that agreement.
Mr. Justice Bracken in Brewster v. Lenzi, 2010 BCSC 1488, agreed with Ms. Brewster. He found that Mr. and Mrs. Lenzi had made a mutual wills agreement with each other, and Mrs. Lenzi broke the agreement by making the new will. He imposed a constructive trust on a half-interest in the condominium in favour of Ms. Brewster. On Mrs. Lenzi’s death, Ms. Brewster will be entitled to the half-interest in the condominium.
This case is unusual in a couple of respects. First, most mutual will claims are brought after the death of the surviving spouse. In this case, Ms. Brewster found out about Mrs. Lenzi’s will before Mrs. Lenzi’s death, and brought the suit during her lifetime.
Secondly, in most successful mutual will cases, there is an express written agreement between the spouses (usually spouses, but you can make a mutual will agreement with someone who is not your spouse). The agreement may either be set out in the wills, or in a separate written agreement, signed by both spouses. The fact that spouses make mirror image wills (wills in which each provides that if he or she outlives the other part of the estate will go to beneficiaries related to or chosen by one spouse and part to beneficiaries related to or chosen by the other spouse) is not sufficient to prove a mutual wills agreement.
If Mrs. Lenzi had not instructed her lawyer to send a letter to Ms. Brewster’s lawyer acknowledging the agreement, I think it would have been very difficult for Ms. Brewster to prove that her father and Mrs. Lenzi had a mutual will agreement that bound Mrs. Lenzi to keep Ms. Brewster as a beneficiary of a half-interest in the condominium.