It is very common for couples to execute Wills on similar terms, often leaving their estate to the survivor with their children inheriting on the second death.
These are referred to as “Mirror Wills”. However, drafting a Mirror Will will not necessarily stop the surviving spouse from amending their Will later on.
This often causes problems in relation to second marriages; whilst the couple are together, they agree that when the second one dies, they will leave their estate to be divided between all the couple’s children and their Wills are drafted on this basis.
However, after the death of the first spouse, the children of that spouse lose touch with the surviving spouse and he or she decides to leave the estate to their own children only. It is at this stage that the children of the first spouse will argue that the original Wills were in fact “Mutual Wills”.
A Mutual Will is one which imposes an obligation on the testators that they will not change their respective Wills once the first has died.
It is a well-established legal principle that no will is irrevocable. Testators are free to change their Wills for as long as they retain the mental capacity to make decisions about their estate. However, if it can be proved that the Wills were agreed to be Mutual, then the terms of the first Will will be applied to those assets which the second testator owns at death and which they received from the first. Please note it is not possible to defeat this rule by giving away assets before you die.
In order to bind the other testator, Mutual Wills must show clear evidence of an agreement between the testators that the Wills will become irrevocable on the death of the first to die. This need not be drafted into the Will and can be inferred from circumstances surrounding the preparation of the Wills and later statements by the parties.
However, whilst it may be relevant that the Wills were made at the same time and in the same terms, this alone does not prove an intention to bind testators, even if one party believed there to be an “unspoken agreement” not to revoke the Will. Case Law has also shown that correspondence between testators and their solicitor will not always prove an intention to bind. Each party has to acknowledge that there is a legally binding arrangement not to amend their Wills.
Lawyers dislike Mutual Wills because they are uncertain. They will often suggest a trust instead, which can be very flexible but means everyone knows where they stand.
If you believe you have Mutual Wills, and this is what you want, but there is no specific declaration to that effect, then you should take legal advice.
Myerson Solicitors LLP provide specialist advice relating to wills, probate, probate disputes, inheritance tax planning and powers of attorney to clients in Manchester and Cheshire.