Mutual Wills: should you have them?
Many couples draw up Wills at the same time which have identical or near-identical terms. These Wills are colloquially known as “mirror Wills” and are extremely common. Mutual Wills, however, go one crucial step further than mirror Wills: not only are the Wills often substantially similar but in addition an agreement exists between the individuals making the Wills (which is not necessarily reflected in the Wills themselves) that the Wills will not be changed. We consider whether mutual Wills are advisable.
What are mutual Wills?
Mutual Wills are Wills drawn up by at least two people and are signed following an agreement between the individuals which it is intended should bind the survivor of them. Each individual agrees with the other not to alter their Will after the other dies. Mirror Wills, which are made in substantially the same terms, do not qualify as mutual Wills without that crucial agreement between the individuals that the survivor of them will be contractually bound not to alter their Will.
Case study: Mr & Mrs Clark’s mutual Wills
A High Court case provided a classic example of when mutual Wills might be made. June and Bernard Clark had bought their council house and made Wills leaving their estates (which were mainly comprised of the house) to each other if one of them died and to their two daughters equally after they had both died. They agreed between them that this was the only Will they would each ever make and that they would not alter it.
This agreement was not reflected in the Will and, following Mr Clark’s death, Mrs Clark made over a dozen more Wills. In her final Will the bulk of her estate was given to her grandchildren. Mrs Clark’s daughters challenged the Will claiming that the two Wills were mutual Wills because of the verbal agreement made between their parents.
The judge accepted the daughters’ evidence that such an agreement had been made and held that the Wills were indeed mutual Wills, meaning that the estate passed to the couple’s daughters, and not to the grandchildren.
Are mutual Wills advisable?
Mr and Mrs Clark had apparently been close to their daughters when they originally made their Wills but as the years went by this had changed and they became closer to their grandchildren. This illustrates how mutual Wills are inadvisable for younger people when circumstances can change considerably.
Mutual Wills can be inflexible and, as the agreement to make mutual Wills can be evidenced outside of the Will, this can lead to uncertainty and disputes, as shown by Mr and Mrs Clark’s case.
However, case law confirms that the doctrine of mutual wills can be ‘tailored’ to individual circumstances rather than being ‘all or nothing’. For example, Mr Clark could have left his estate to his wife on the proviso that (unless both of their children provided their consent) she would leave at least (say) 60% of her estate on her death to their children .That would have left Mrs Clark with complete freedom to do what she liked with the other 40% of the joint estate including leaving it to the grandchildren. A watertight agreement would also include some mechanism to achieve fairness if Mrs Clark decided to make lifetime gifts, thus reducing the amount the children would receive from her estate.
Are trusts preferable?
A modern trust by comparison is a flexible way of protecting the assets of the first of a couple to die so that they can be guaranteed to pass to a couple’s chosen beneficiaries after the survivor’s death; while at the same time the surviving spouse retains the freedom to make a new Will and to cater for changing life circumstances. The decision between whether to use mutual Wills or a trust will in the end depend very much on the facts of each individual case.
Contact a specialist Wills solicitor
If you would like to discuss making a Will, and the protection of the assets in your estate, call us now on 0800 652 8025 or contact us online. Your initial consultation is free. Our specialist solicitors are based in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton are ready to discuss your case.