Making a Will – is the feeling Mutual?

What are Mutual Wills?

Mutual Wills are a type of Will in which people decide to make Wills in similar terms and agree that in the future they will not revoke or amend that Will without the consent of the other party. This means that once one of the parties dies, the other person cannot change their Will.

“Mutual Wills” should not be confused with the more common “Mirror Wills” in which people make Wills in similar terms but are not “tied in” to the terms of the Will and can change them at any time.

How is a Mutual Will recognised as such?

Usually a Mutual Will contains wording to say that the parties have agreed with one another that the Wills shall not be revoked or altered during their joint lives or changed by the survivor.  However, even if this wording is not included, a claim can be made at a later date that the Wills are intended to be Mutual Wills if a claimant can provide evidence to the effect that the Testators had intended that the survivor would not change the Will. Of course, proving the joint intention is much more difficult without the wording included.

In 2017 The Law Commission considered abolishing the concept of Mutual Wills but decided against it.

Why do people make Mutual Wills?

The main reason that people enter into Mutual Wills is that they wish to ensure specific beneficiaries inherit when both parties have passed away. This may be suitable in second marriage situations where there is a concern that the survivor could potentially disinherit the original agreed beneficiaries from one side of the family, choosing instead to distribute the “joint” estate to beneficiaries from the other side of the family.

There are other methods of dealing with an estate which can preserve assets for named beneficiaries whilst still allowing the survivor the freedom to distribute their own assets however they please. For example, a Life Interest Trust can be set up within a Will where there is a jointly held property which, on first death, would give the survivor the freedom to live in a property but secure the interests of named beneficiaries on the survivor’s death. In that situation, one half of the property would be held in trust and the other half still owned outright by the survivor. This also has the added benefit of protecting one half of the property value against potential care costs.

Adapting to changing circumstances

The usual principle when making a Will is that a person who has the necessary testamentary capacity is free to change their Will at any time. By entering into a Mutual Will both parties give up their right to change their Will if they outlive the other party regardless of the situation at that time. Similarly, they are also unable to change their Will during their joint lifetime without the other person’s consent.

The future cannot be predicted at the time of drafting the Wills and the actual situation may turn out to be totally different to the anticipated scenario. For instance, following the first death, the survivor may review the situation and decide that their children are financially secure and may wish to change the residuary beneficiaries under their Will in order to help grandchildren get onto the property ladder instead. With a Mutual Will, the survivor could not do this.

Is there anything that can be changed under a Mutual Will?

It is possible for the survivor to change the Executors of the Will, but not the beneficiaries.

What happens if the survivor remarries or makes a new Will?

It is also worth noting that after the first death a Mutual Will is not revoked on remarriage as is usually the case for “normal” Wills and the terms of the Mutual Will remains binding on the surviving testator’s estate.

If the survivor is unaware of the restriction and does make a new Will contrary to the agreement, on their death, the personal representatives will hold the assets relating to the Mutual Wills on a Constructive Trust for the beneficiaries of the earlier Will. Obviously establishing the extent of those assets (for example the value of a property and amount in bank accounts) can be problematic, especially if the first death occurred many years previously and accurate records have not been kept. This can lead to dispute and costly litigation.

Conclusion

Mutual Wills do serve a purpose in the context of Will preparation but they can be inflexible and restrictive. There may be alternative options which can be discussed should you wish to ensure that joint assets are preserved for certain beneficiaries after a second death scenario.