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Mutual Wills were once a popular method for couples to jointly manage their estate and ensure their assets were distributed according to their wishes upon their passing.
They are becoming increasingly unpopular and problematic, with many Will practitioners advising their clients to avoid them given the difficulties that arise following the first individual's death.
What are Mutual Wills?
A Mutual Will is when two individuals make Wills based on a binding agreement that neither will change their Wills, and the provisions for asset distribution are agreed upon.
These Wills aim to create a combined estate plan, usually for a committed couple.
They provide a sense of reassurance that even if one person passes before the other, their estates will pass in line with their agreed intentions.
For example, a husband and wife make Mutual Wills and leave their entire estates to each other and on the death of the survivor, 50% will pass to the husband's children from a previous relationship, and the other 50% will pass to the wife's children also from a previous relationship.
On the death of the first spouse, a trust of the couple's assets arises, and whilst the surviving spouse is free to use the assets, the Mutual Wills ensure that the remaining assets of the couple at the date of the first death are distributed in accordance with the terms of the Mutual Wills.
The use of the assets is restricted to the extent that the use of those assets does not result in the disposition of assets calculated to defeat the terms of the Mutual Will.
What are Mirror Wills?
Mirror Wills are usually made by two people where the contents "mirror" that of the other Will, but the Wills can be changed at any time provided the person has sufficient mental capacity.
Why should you avoid Mutual Wills?
Fail to Account for Future Change
Mutual Wills can usually be changed by agreement while both parties are still alive and retain mental capacity, but once one of the parties dies, the surviving party cannot change their Will.
The challenge is that the surviving party's circumstances may change over time, and they may wish to update their Will to reflect their changing relationships.
This is particularly likely to be the case if there is a long period of time between the death of the two parties.
Risk of disputes
Mutual Wills can also result in an increased likelihood of Will and estate.
The beneficiaries of the Will or family members excluded from the Will may look to dispute the Will if they believe it produces an unfair result.
These types of disputes are often costly, lengthy and can cause emotional distress and damage relationships between surviving family members.
Testamentary Freedom
The principle of testamentary freedom is fundamental to the law of England and Wales. It refers to an individual's right to dispose of their assets as they wish upon their death.
Mutual Wills limit this freedom for the survivor in the couple, and they will remain bound by the terms of the Mutual Will even if their wishes have changed, which can be frustrating.
Uncertainty Regarding Rights
Depending on how they are drafted, Mutual Wills may result in the surviving party struggling to access or manage certain assets independently, as the Will may impose restrictions.
There can also be uncertainty as to how assets acquired by the survivor after the death of the first spouse are treated, and therefore careful accounts and administration of the assets in the estate will be required, which can be restrictive and cumbersome.
Conclusion
Mutual Wills seem like a helpful choice for couples, but they come with significant challenges and risks for the future.
An alternative would be to make mirror Wills but incorporate trusts, which can have the same effect without all the potential problems arising.
If you are considering making Wills and require estate planning, please get in touch with a member of our experienced Wills, Trusts and Probate team to ensure that you avoid the pitfalls outlined above.