Are you part of a couple thinking of making a ‘mutual Will’? Beware the future implications
It is common for couples to agree to make identical Wills – what lawyers call ‘mirror Wills’ – but there is no law stopping either party changing a mirror Will subsequently, or the beneficiaries all agreeing, after the death of one of the Will-makers, to vary that person’s Will.
What is a mutual Will?
A mutual Will is where two (or more) testators make Wills which mirror the contents of the other(s). However, mutual Wills cannot be altered upon the death of one of the testators. Changes can be made to the Will(s) prior to the death of any of the testators but upon the death of a testator all other testators will be bound by the terms of the mutual Wills and any subsequent Wills executed will be held invalid.
What is a mirror Will?
A mirror Will is where two (or more) testators make wills with the terms of each Will mirroring the other(s). The Will(s) can be changed at any time prior to the death of any testators and also following the death of any of them.
What are the laws governing mutual Wills?
If two or more people (who can be a married couple or in a civil partnership, but do not have to be) agree to make mutual Wills, neither can change or revoke their Will without notifying the other – and once one of the Will-makers has died, the second Will-maker cannot make any further changes to their own Will.
Wills are mutual Wills if, on the balance of probabilities:
- the Will-makers made a legally binding agreement that each would:
- make a Will containing agreed provisions (the Wills do not have to mirror each other, but often do);
- not amend or revoke their Will without telling the other, so the other could change their Will as well; and
- once the Wills were made, they were not amended or revoked before the first of the Will-makers died.
Mutual Wills are relatively rare – solicitors are often reluctant to advise clients to set Wills in stone as their clients’ circumstances, whether personal or financial, might change over the years, and signing a mutual Will can leave someone stuck with a Will that is no longer appropriate, but which they cannot alter.
If there is a dispute over whether Wills are mutual, the court looks at the provisions of each Will, any notes made by solicitors involved in making the Wills and relevant evidence from witnesses.
A husband and wife with two daughters (A and L) had made Wills at the same time, in July 2000. Both the husband’s and wife’s Wills left everything to their daughters, in equal shares.
The husband died in 2001, and his estate went to his daughters, as per his Will. However, when the mother died many years later the daughters discovered she had changed her Will thirteen times since their father had died, gradually reducing the amounts left to them in each Will.
When the mother died, the executors submitted the 2014 Will and obtained probate.
The daughters claimed that the mother’s Will made back in 2000 was a ‘mutual Will’. This meant that the subsequent Wills were invalid, and they were entitled to share equally in their mother’s estate.
In this case, A had been there the whole time when her mother and father signed their Wills, and L for part of it. Both daughters gave evidence that it had been explained to their parents at the time that their Wills were ‘set in stone’ and could not be changed once one of them died.
L also gave evidence of a conversation she had with her mother in 2004, after her father had died. L had heard that her mother planned to change her Will to include a granddaughter – A’s daughter - as a beneficiary. L said she had reminded her mother of her promise to her father that she would not change her Will and therefore could not make the change. L’s evidence was that her mother later decided not to add A’s daughter after all.
In fact, the court found that the mother had made a new Will adding A’s daughter as a beneficiary (and also as an executor). However, she then made yet another new Will just five days later removing A’s daughter. The court found that this was evidence the mother had considered what her daughter had said, and accepted that she had agreed with her husband not to change her Will after he had died.
L also gave evidence, which A confirmed, that her father had told her, when she asked him why there were not specific provisions in the Wills making it clear they were mutual:
- that their solicitor had explained to him and her mother about the consequences and implications of making mutual Wills;
- that they had both understood, agreed they could not change their Wills, and promised each other that they would not
so a specific provision was not considered necessary.
The court ruled that the couple had expressly agreed that neither would amend or revoke their Wills without telling the other first. They had therefore made mutual Wills and the mother could not change her Will once her husband had died.
As probate had already been granted in relation to the mother’s 2014 Will, the court ordered that her executors had to hold the estate on trust for the daughters on the terms of the 2000 Will, and split it between them accordingly.
Case ref: Legg & Another v Burton & Others  EWHC 2088