Mutual Wills: should your clients 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: 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 drawn up by at least two people and each person 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.

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 thirteen more Wills. In her final Will the bulk of her estate was given to her grandchildren. Mrs Clark’s daughters challenged the Will on the basis that the two earlier Wills made by Mr and Mrs Clark were mutual Wills because of the verbal agreement made between their parents.

The judge accepted the daughters’ evidence that such an agreement was made and held that the Wills were indeed mutual Wills, meaning that the estate passed to the couple’s daughters.

Are mutual Wills advisable?

Mr and Mrs Clark had apparently been close to their daughters when they made their Wills originally but as the years went by this changed and they became closer to their grandchildren. The inability of Mrs Clark to make a Will which could reflect the change in her family relationships is the main reason we would generally discourage making mutual Wills. They are very inflexible and cannot adapt to today’s often fluid family circumstances. Moreover, 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.

Alternatives to mutual Wills

A modern trust by comparison is a much more flexible way of protecting the assets of the first spouse to die and guaranteeing that they 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 cater for changing life circumstances.

The Law Commission’s view

The Law Commission examined the issue of mutual Wills in their  consultation report on the reform of the law of Wills. The abolition of the concept was considered but ultimately rejected as it was felt that abolition would be a restriction on testamentary freedom.

The Law Commission instead proposed that assets left under a mutual Will should fall within the definition of the testator’s estate which can be claimed against under the Inheritance (Provision for Family and Dependents) Act 1975 (the 1975 Act). This Act enables a disappointed beneficiary for whom a Will has not made reasonable financial provision to claim against an estate if they fall within one of the specified categories of persons.

At present, property left under a mutual Will does not form part of the net estate against which a 1975 Act claim can be brought, so in many mutual Wills cases there is no estate from which provision can be made for the disappointed beneficiary. The proposed change means that a qualifying beneficiary who does not benefit under the mutual Will could bring a claim against the estate under the 1975 Act. If successful, they could be awarded a share of the estate, despite the existence of the mutual Will.

While this would be a step forward compared to the present situation, it does mean that a disappointed beneficiary would potentially have to bring court action in order to share in the estate. By comparison if mutual Wills had not been made in the first place, it would be possible for the survivor of the couple to include the beneficiary in their Will if they wished to do so and no court application would be necessary.

Contact us

For more information, please call us on 0800 915 7732.