The Benefits and Pitfalls of Mutual Wills

Many have heard the phrase 'Mirror Wills’ but may not be aware of the existence of a ‘Mutual Will'. Mirror wills are common, and (as the name suggests) mirror one another. They are often used by married couples where, for instance, they both wish to leave everything to each other, or to their children. A person is free to revoke their will as they choose, often by making a new one and changing who is to inherit.

Mutual wills on the other hand are very different. They are, in effect, a contract with the other person making a will. In that agreement you both agree you will not change your will at a later date, in return for the other person agreeing the same.  This effectively creates a trust when the first person dies.

Mutual wills can, in the right circumstances, be extremely useful for families where, for example, there are children from previous relationships and you want to provide for your spouse but also protect your assets for your children.  

Great care needs to be taken to ensure that an intention to create legally binding mutual wills is effectively carried out, and also to ensure that any ambiguity over intention is avoided, so that expensive disputes in the future can hopefully be avoided.

Practical Problems

Mutual wills may cause practical difficulties. The main problem is that there is no real duty imposed upon the survivor to account for the assets of the first die, and if the Will is not drafted property, the trust created on the death of the 1st to die may include assets later acquired by the survivor which cannot be given to anyone other than the beneficiaries of the Mutual Will.

If a Mutual Will is desired, it is preferable that the Will specifically states this, and when the trust arises (for example the assets at the time of death of the 1st to die).

The legal case of Naidoo v Barton 2023 considers the principles of mutual wills:

·       The “contract” must be one that is enforceable at law i.e. it must comply with the usual rules of contracts;

·       The wills do not need to expressly say that you must not revoke a Will - the agreement can be implied from evidence;

·       There must be an agreement from both parties not to change their wills in the future;

·       The binding agreement can be contained outside of the terms of the will;

Summary

In the facts of the case the court had little hesitation in holding the will in question to be 'mutual' in nature, especially given it was expressed to be mutual within the Will itself.

Solicitors should specifically discuss what a Mutual Will is, and be clear as to whether you will to be able to alter their Wills or not. It is also recommended to have a clause in your Will confirming whether or not a Will is intended to be mutual with that of a spouse/civil partner.