Mutual Wills – what are they and why you might want to avoid them like the plague.

For more information about Mutual Wills and why you might want to avoid them get in touch with our Private Client team today.

Not to be confused, as they often are, with ‘mirror’ or ‘similar’ Wills, mutual Wills create a binding agreement between two people (the Will makers) which prevents the survivor from making any changes to their Will.

The formal requirements for mutual Wills are that there is evidence of a binding intention between the two Will makers that:

• Their estate(s) will be distributed in a specific way; and

• The Wills cannot be revoked on an independent basis – so they are, for all intents and purposes, a ‘joint’ enterprise.

This means that if a person, having previously entered into a mutual Will agreement, decides to write a new Will, that later Will would very likely prove invalid – we’ve highlighted this crucial point in a case study below. Great care is therefore needed in these circumstances.

The freedom of testation afforded every individual in England & Wales means a person can make as many Wills as they like – but in the context of mutual Wills, it becomes a question of validity and which Will ‘passes the test’.

So long as they have the requisite mental capacity to do so, an individual will always be free to revoke any Will they may have made. Technically, this applies to mutual Wills as well. In a bizarre twist – and because by their very nature, a mutual Will creates a binding agreement – the law of equity requires the surviving Will maker (the co-contractor in the binding agreement) to give effect to the mutual Wills. This can sometimes create unintentional consequences, setting traps for the unwary.

My partner and I have an ‘understanding’ as to how the survivor of us will distribute our assets – is this enough to create a binding agreement?

No. The level of proof required to show an agreement exists which binds a survivor in these circumstances is very high. Any agreement would need to be ‘clear and unequivocal’, not just mere understanding – in fact, evidence of such an agreement would need to be in writing (and therefore is often included in express clauses in the Wills themselves).

I made a mutual Will with my partner a few years ago. He’s since died and I’ve remarried. Doesn’t this revoke my Will automatically?

No – mutual Wills cannot be defeated in this way – you as survivor must adhere to the terms of the binding agreement in your existing Will. The principle effectively means those entering into such agreements are likely to be bound until they die.

I’m party to a properly drawn up mutual Will which grants me a right to live in the main residence property – can I go ahead and sell it?

Probably not – this is because you cannot prevent any ultimate beneficiaries from receiving any share(s) that they would have on your death (or in some cases, if you remarry/cohabit with someone else), depending on how the Will is drafted.

The cautionary tale of Mrs Clark and her 14 Wills

To put all this into perspective – let’s look briefly at a key case highlighting the potential issues which may befall those heading down the mutual Will path.

This relatively recent case (2017) concerned the Estate of June Clark who died February 2016 leaving a Will dated some 16 years prior to that. Mrs Clark’s 2000 Will was claimed (successfully) by the late Mrs Clark’s daughters, to be mutual, and therefore bound with that of the Will of Mr Clark, who had predeceased Mrs Clark.

It transpired that Mrs Clark made – between the year 2000 and her death in 2016 – a further 13 Wills. However, as soon as Mr Clark died, Mrs Clark’s 2000 Will was incapable of being altered as she was bound by the jointly agreed terms in both their Wills. Will makers going down this route therefore need to be conscious to the fact that they essentially want to be bound for all time by their mutual Will arrangements.

So what are ‘mirror’ or ‘similar’ Wills and are they the better option?

Straightforward. Simple to understand. Clear. Mirror Wills often bear all these traits – the only caveat being that they can be changed at any time by the individual that makes it (i.e. they’re not binding in the same way as a mutual Will).

A common example is where a couple give everything to each other, thereafter to their children equally and if not, their grandchildren in turn. After one half of the couple dies, the other may well ‘take stock’, look at their circumstances and could very well decide to change their Will, meaning beneficiaries originally intended (by the couple together while they were both alive) to receive gifts under the Will might be struck out and disinherited. While the mutual Will route certainly seems unappealing, even with these similar Wills, there’s a certain lack of protection/future proofing these similar, mutable Wills.

We refer to ‘similar’ here, because ‘mirror’ in this context means identical – but in reality, it’s actually highly unlikely that any two Wills are exactly the same, nor indeed would most couples want them to be – they’ll each have their own nuances whether that’s in connection with different sentimental items acquired before they were married, or how they want things distributed. It’s important to distinguish similar and mirror Wills because of this. The very nature of a mirrored Will means any references would likely need to be generic – not the most useful if you need to be bespoke about certain things, e.g. jewellery / gifts of different sums of money etc.

Of course, none of this should preclude a couple from discussing things through with the intention of making what may well become very similar Wills.

How about a compromise? – do similar Wills and mix in an element of control so that your various assets, whether jointly held or not, pass to the right people at the right time and in the knowledge that there’s likely to be no easy way to challenge the decision – there are various options potentially available, most, if not all of which, avoid the tricky mutual Will scenario.

To bind or not to bind?

We do not regularly recommend mutual Wills to our clients, if at all. They are notoriously inflexible and extremely prone to causing future disputes. Fundamentally, these types of binding Will restrict a person’s freedom of testation (to make a Will) and can cause all sorts of emotional upset further down the line.

If you have an existing Will – let us review it for you, starting with a 30mins no-obligation chat. Equally, if you don’t have a Will – give us a call so we can help you ensure your assets are going to the right people and give you some peace of mind that everything’s back on track and that your affairs are in good order.

Wording is everything in the context of Wills – any incorrect wording can have potentially catastrophic consequences, particularly if you’ve inadvertently created something which essentially binds you for life – and, like so many documents of this type, has probably been buried in the filing cabinet!

For more information about Mutual Wills and what they do, get in touch with our Private Client Law team today on 01284 767766. We support clients all over the country from our offices in Bury St Edmunds, Sudbury and London.