A Mutual Will is one drawn up between two people who agree between them that at no point in the future will they revoke (that is, cancel) or amend their Will without the consent of the other party.
However, the inflexibility built into this condition can create a number of problems further down the line for the surviving testator in the event of the other’s death and therefore setting up a Mutual Will is not generally recommended as a course of action.
Further, they should not be confused with Mirror Wills – a mix-up which can prove costly. So, how exactly do Mutual Wills and Mirror Wills differ, what are the key considerations when choosing which option is right for you, and what are the pitfalls of choosing unwisely?
Here, we examine how a Mutual Will works from a legal perspective:
What is the difference between a Mutual Will and Mirror Wills?
A Mutual Will establishes a legally binding agreement between two people which cannot be reversed without the prior consent of co-signatories. In contrast, Mirror Wills simply reflect the contents of each other, whilst in effect being standalone documents that either party could change independently at any time.
The contractual nature of a Mutual Will is significant. With a Mirror Will, there must be a certain element of trust because either party remains free to write a new Will with absolutely no obligation to tell the other what they’ve done, effectively revoking the one previously agreed upon. This could, for example, mean that if your partner was to remarry after your death, they could stipulate that the assets from what was your joint estate go to their new spouse, rather than your children. Equally, if they die first, you could end up being shocked to learn that their half of the estate doesn’t now automatically get transferred to you because their ‘new’ Will states something else. This situation can be mitigated however, by careful drafting of the Mirror Wills, and including the use of Trusts.
With a Mutual Will, however, as soon as one of the testators dies, it becomes impossible for the surviving party to alter any element of the agreement.
As personal circumstances inevitably change, particularly upon the death of a loved one, Mutual Wills can severely impact future decisions.
Even if an individual who is party to a Mutual Will later decides to change their Will, and it contradicts the previous agreement, then the beneficiaries of the new Will are deemed to simply be holding the assets on trust to perform the equitable obligations arising from the earlier adopted mutual Will.
For these reasons, Mutual Wills remain uncommon and most people would struggle with the concept of making a Will which could not potentially be changed in the future. But surprisingly, the intention to create a Mutual Will does not even need to be specifically stated in the Will itself or be in writing for it to be binding, as the following high-profile case showed, providing a cautionary tale for all couples:
CASE STUDY: Ethel Willson and Mabel Cook
In July 2010, a case concerning two elderly sisters, Mabel Cook and Ethel Willson, reached the High Court. After both losing their husbands, the two sisters co-habited and were often referred to as being “two peas in a pod” who did everything together. This included the drafting of their Wills.
When initially drawn up in 1991, the Wills were largely identical, and the sisters were each other’s sole beneficiary and executor. The Wills both stated that upon the second death, two other individuals would become responsible for the administration of the Will, after which, what was left of their combined estate would be shared between 15 other family members and friends.
Mabel died in 1995, at the age of 83. Then in 2003, Ethel decided to draft a new Will in which she changed the executors and some of the beneficiaries, both removing a number of individuals who had died, whilst rewarding others who had helped her since the death of her sister.
A further Will was made in 2006 in which Ethel made her hairdresser, one Mrs Fraser, the sole executor and beneficiary of her estate, as thanks for her ongoing support in her later years. Just a short while later, on 11 November, Ethel died, triggering a legal battle regarding the validity of the latest Will.
Three of the 15 beneficiaries listed within the original 1991 Wills claimed that they were ‘Mutual Wills’ and as such, could not be superseded by the later versions Ethel had made.
There was neither documentary evidence of the Wills being ‘Mutual’ nor any prior agreement between the two women indicating as such. But when the case got to Court, the Judge agreed that the intention for the Wills to be ‘Mutual’ was evident and the challenge was successful.
The ruling was based on the facts that:
- the sisters described both referred to the Wills as “the Will”;
- the Wills were made on identical terms;
- the contents were balanced, with due care and attention taken to ensure they were equally fair and respectful to both sides of the sisters’ family;
- witness evidence indicated that the sisters’ intended the Wills to not be altered in any way.
The Judge ruled on the balance of probability as to whether the sisters meant the Wills to be irrevocable, determining that, ultimately, they did.
This meant that the claimants were entitled to the majority of Ethel’s estate totalling £380,000, but not Mrs Fraser, who was ordered to repay the full inheritance, including the sum that she had already spent on a house purchase.
The case highlighted the importance of solicitors and Will writers accurately recording the intentions of their clients when drawing up a new Will.
To avoid any confusion, Wills between spouses or relatives which are undertaken on similar terms, ought to include an express clause with states whether they are intended to be irrevocable in the future. Only in this way will costly arguments be avoided later down the line.
Why make a Mutual Will?
A Mutual Will does not include wriggle room. It binds you to your earlier decisions regardless of what the future may hold.
In one such case, Legg v Burton [2000], a husband and wife made Wills in the same terms – a not uncommon scenario. They both left their estate to the survivor and, on the second death, to their children, again not uncommon. But the survivor later fell out with her children and made several new Wills, the last of which mainly benefitted her grandchildren. So, the children sued the grandchildren, claiming that whilst the Wills did not specify if they were mutual or not, the parents had expressed the wish that their Wills be “set in stone”. The Court was satisfied that this was indeed what they intended, and so the Wills were mutual and could not be changed following the first death.
In almost all circumstances, Private Client practitioners will advise against making Mutual Wills. There are usually many better ways of achieving what the parties seek without tying their hands in this way.
The evidence of the children in Legg v Burton indicated that the Testators had expressed their desire that the Wills should be irrevocable in front of their solicitor. If that was indeed the case, it is surprising that it was not set out in the Will in the form of a clause and, equally, that the solicitor involved was not called to give evidence to clarify the situation.
At Buckles, our specialist Private Client Estate Planning Team offer impartial advice on what type of Will would best suit your needs in order to avoid unnecessary or costly challenges in the future. Our clients’ needs and best interests are at the heart of everything we do, so to discuss your case please contact us on 01733 888 888 for a consultation.
