Laura Abbott, Principal Associate in the Disputed Wills and Trusts team at Shoosmiths, explains what a mutual will is and how it differs from a mirror will.

What are mutual wills?

Mutual wills are wills which are made by two people (usually, but not always, spouses or civil partners), typically in the same terms, with the agreement that neither party will alter or revoke either will during lifetime without the other’s consent, or after the first death. The terms of the will therefore will remain binding on the survivor after the first death whether or not they make a later will.

There has to be what is, in effect, a contract between the two testators (the persons making the will) that the wills will be irrevocable and remain unaltered. A common intention, expectation or wish is not enough.  The wills may be a single joint document or in separate documents.

What is the difference between mutual wills and mirror wills?

Mutual wills are unlike mirror wills, which are made when two people make wills with the same terms but they can be changed in the future.

If parties merely agree to make wills at the same time and in the same terms, this is not enough to establish that the survivor should be bound by the will. As there is no agreement not to revoke the wills, then they are not mutual wills and either party can change their will at any time. In particular, and the survivor can make a new will which, will be effective as to its terms after the first death.

If there is a mutual will and the survivor does change it after the first death, then the executors of the new will would hold the deceased’s estate on a constructive trust for the beneficiaries of the mutual will.   

Why make mutual wills?

Making mutual wills can avoid the risk of the survivor changing their will after the first death. In certain family situations this can appear attractive – for example, second marriages where each party wants to ensure their new spouse and their own children are provided for. 

Example

• Mr and Mrs X are married but both have children from previous relationships. Mr X is father of A and B and Mrs X is mother to C and D. Mr and Mrs X both want to ensure that the survivor of them and their children benefit from their estate.

Making just a mirror will to each other on the first death and then to A, B, C and D in equal shares involves a risk that the survivor could change their will to the exclusion of the children of the first to die. The survivor could also marry again, which would revoke the mirror will, or make a new will to the exclusion of the four children. In contrast, making a mutual will would mean the intended interests cannot be changed by the survivor or be revoked by a future marriage. Therefore, at first glance mutual wills appear to offer the perfect solution. However, most practitioners caution against them and thus they are rarely made. 

What are the disadvantages of mutual wills?

A major disadvantage of mutual wills is a lack of flexibility as circumstances can and do change, particularly if there is a long time between the deaths of the two testators. Mutual wills restrict the testamentary freedom of the survivor as wills cannot be changed to reflect any changed circumstances, both in the family or financially. Mutual wills also restrict the survivor’s ability to lifetime plan in terms of gifts for inheritance tax or take advantage of more favourable legal or tax advice or changed legislation.

In our scenario, if Mr X died first Mrs X would not be able to, for example:

• make a gift to A to help him on the property ladder
• add in cash legacies to her will to grandchildren born after the first death
• leave a cash legacy to a friend who has looked after her since Mr X’s death

There can be uncertainty and disputes can arise particularly over whether wills are mutual, especially as the agreement required can be contained outside of the will itself and does not necessarily need to be in writing.

There can also be disputes over what assets are affected by the constructive trust that arises on the first death – for example, if the survivor inherits from someone else after the first death those assets might not be included in the mutual wills trusts. 

What are the alternatives to mutual wills?

There are alternatives to mutual wills, with the most popular being the use of a trust. In the scenario outlined above, the wills could instead create life interest trusts so that the estate of the first to die, Mr X, is available for the use and benefit of the survivor, Mrs X, during her lifetime, whilst ultimately protecting and safeguarding it for A and B. This arrangement would also allow Mrs X to make any lifetime gifts from her estate and/or change her will to reflect any changed circumstances such as the examples highlighted above. 

Note for practitioners

The Law Society Wills and Inheritance Quality Scheme Protocol outlines best practice for advising on wills and paragraph 10.5 highlights the main points that a will drafter should cover in their written explanation of the effect of mutual wills, where they are contemplated. It also sets out the steps that a will drafter should take where the clients agree that they want their wills to be mutual, and where they decide that they do not want their wills to be mutual.

Failure to take these steps could expose the draftsman to allegations of negligence.

When testators are making wills in identical or very similar terms, but do not wish them to be mutual wills, there is also merit in including a clause stating this expressly to avoid any future dispute.

About the author

Laura Abbott is a Principal Associate in the in the Disputed Wills and Trusts team at Shoosmiths and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

What you need to know about mirror wills

What you need to know about the right of survivorship

Everything you need to know about will trusts

The duties of an executor: what to do when someone dies

Place a deceased estates notice

Find out more

Wills and Inheritance Quality Scheme (The Law Society)

Image: Getty Images

Publication date: 26 September 2022

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.