Mutual and Mirror Wills are a topic that is not often discussed. Whilst many of these Wills still get created we thought it is worth considering, what are the risks of Mutual Wills and how can they be avoided?
When it comes to estate planning, it is often the case that spouses and civil partners will undertake this exercise together. As part of this exercise, they will often prepare Wills together that are similar in terms, if not identical. Such Wills are often called Mirror Wills.
Whilst Mirror Wills are prepared in similar terms, there is nothing to prevent the other party from changing their own Will at a later date, which can be useful when taking into account changes in the family dynamic in future, particularly after the death of the first spouse/civil partner.
Mutual Wills have an opposite effect. Mutual Wills usually arise when there is an agreement between spouses/civil partners not to amend or revoke their Will without the consent of the other spouse. After the death of the first spouse, the Will of the surviving spouse effectively crystallises, meaning that they are prevented from amending their Will at a later date, no matter what changes have taken place.
The risks of creating Mutual Wills
The case of Legg and others v Burton and others [2017] EWHC 2088 (Ch) highlights the risk with making Mutual Wills.. In 2000, Mr & Mrs Clark made Wills which were in mirror terms. The court held that at the time of preparing the 2000 Wills, there had been an express promise made by the late Mr & Mrs Clark not to change those Wills, which was sufficient to for the Wills to be confirmed as Mutual Wills. This had the effect of invalidating the subsequent 13 Wills that the late Mrs Clark had made after the death of Mr Clark.
Where Mutual Wills are established, the executors of the surviving spouse’s estate will effectively be holding the deceased’s assets on a constructive trust in the terms set out in the mutual Will, even if the deceased had considered that they had revoked the earlier mutual Will.
Mutual Wills can also have an undesirable legal impact. The marriage of a testator usually revokes an earlier Will by virtue of section 18 of the Wills Act 1837. However, this does not apply in the case of a Mutual Will. It would be conceivable that spouses or civil partners could make Mutual Wills and then subsequently divorce. If one of them died before the completion of the divorce, then the mutual Wills would crystallise, and could not be revoked by the surviving ex-spouse/civil partner. This could have significant impact on their estate planning in any future marriage or relationship that they enter into.
Mutual Will cases can be complex and difficult to prove, as they may often fail to show that there was an agreement which constituted a binding legal contract between the two testators. In two recent cases, Naidoo v Barton [2023] EWHC 500 (Ch) and McLean v McLean [2023] EWHC 1863, the respective parties relying upon proposed mutual Wills both failed to establish that such an agreement existed between the testators.
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To avoid this uncertainty, the testators could include a statement in their Wills that the Wills they have prepared are not Mutual Wills. Such a statement gives a clear indication that the parties did not have any intention of creating Mutual Wills at the time of executing their Wills. This would allow them to make any amendments that they wished to make at a future date.
Planning your estate can be a complex undertaking. You should always consider obtaining professional advice to ensure that your wishes for how you intend your estate to pass on your death are enacted correctly.
If you are considering preparing a Will or require assistance with estate planning and you have any questions, please do not hesitate to contact our Wills, Trusts & Estates Department, Heather Lally or Stephen Mackellar on 01244 354800 or email: Heather.Lally@dtmlegal.com or Stephen.Mackellar@dtmlegal.com.
If you have any queries regarding a disputed estate where there may be a Mutual Will, please do not hesitate to contact Richard Thomas on 01244 354800 or by email to Richard.Thomas@dtmlegal.com.
This article is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.
