WillsThe Problem With Mutual Wills

From time to time, you may come across a client who has a mutual will or alternatively have a client that requests a mutual will. These are different to mirror wills. This week’s article will cover what a mutual will is and what issues can arise from these.

What are mutual wills?

Mutual wills are wills made between multiple parties in which they are making some mutual benefit to the other parties and the parties involved agree that the wills cannot be revoked without the consent of the others. On the death of any of the parties the survivors will be bound by the terms of the mutual wills. Mutual wills are most commonly made between spouses, gifting assets to each other on first death and then over to children on the death of the second.

Whilst all parties are alive, they can change their minds at any time and revoke the mutual wills. Once one party to this agreement dies and the others accept their benefit from the deceased’s Will, the agreement not to revoke becomes binding on the other parties.

What is the problem with mutual wills?

On the face of it, this seems beneficial, however mutual wills have numerous issues.

There is no flexibility for the survivor, particularly if relationships deteriorate with beneficiaries or if there was need to amend the will in the future, for example if there was need to include discretionary trust due to a beneficiary having addiction issues or if the survivor wanted to make small gifts to grandchildren who were not alive at the time of the initial arrangement.

The mutual will covers all assets not just assets owned at the time of the first death. The survivor could for example win the lottery or receive a large inheritance and they are bound to deal with that as per the terms of their mutual will even though they may want these new assets to pass elsewhere.

The situation with mutual wills becomes unclear if the survivor remarries or forms a new civil partnership. The new marriage or civil partnership would revoke the mutual will under S18A and S18B of the Wills Act 1837. This leads to a situation where the survivor holds their own estate on trust for the eventual beneficiaries of the mutual will. It is confusing in these circumstances however exactly how much the of the survivor’s estate is covered by this trust:

• Is it just assets received from the first to die?
• Is it assets received from the first to die and anything the survivor owned at the time of first death?
• Is it all assets owned by the survivor at death?

There is a range of different legal opinions on this matter and there is a possibility of litigation on second death.

Our advice

Due to their various disadvantages, it is not WillPack’s policy to draft mutual wills. We recommend that if couples wish to benefit each other, but protect assets for eventual beneficiaries, that they consider the use of trusts, usually a plain life interest or a flexible life interest. Any mirror wills drafted by WillPack also contain a clause confirming that the wills are not mutual.

These can allow their surviving partner to benefit from the deceased’s assets but ensure that those assets are protected for eventual beneficiaries whilst also allowing for flexibility for the surviving partner to deal with their own assets as they see fit and deal with unforeseen circumstances.

Whenever you see a client, you should always confirm whether they have made previous wills and if so ask to see a copy to confirm whether that previous will is mutual. You may also need to see any documentation they received when that will was drafted as the agreement to make mutual wills could be made outside of the will.