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The terms Mutual Wills and Mirror Wills are often used interchangeably. In practice, however, they have very different legal meanings and consequences. Confusing the two can lead to serious problems for families and beneficiaries, particularly after the death of one partner.
Both types of Wills are commonly used by couples who share similar intentions. A typical arrangement is that everything passes to the surviving partner and then, on their death, to the children. In this sense, the Wills “mirror” each other.
While this may seem straightforward, an important question arises: can the surviving partner later change their Will? The answer depends on whether the couple has made Mirror Wills or Mutual Wills.
What are Mirror Wills?
Mirror Wills are two separate documents, usually made by couples, that reflect the same or very similar wishes. Each partner normally leaves their estate to the other, with agreed beneficiaries inheriting after the second death.
Despite their similarity, Mirror Wills are not legally binding. Either person can change their Will at any time, even after their partner has died.
This flexibility is often helpful. Life circumstances can change through remarriage, financial pressures, family disputes, or new dependents. Mirror Wills allow couples to adapt their estate planning as their situation evolves.
What are Mutual Wills?
Mutual Wills go much further than Mirror Wills. They involve a legally binding agreement between two people that neither will change their Will after the first death. In effect, the couple enters into a contract that fixes how their estate will be distributed.
Once one person dies in reliance on this agreement, the survivor becomes legally bound by it. To establish Mutual Wills, there must be clear and convincing evidence that both parties intended to create a binding arrangement. A shared understanding or informal promise is not enough on its own.
The agreement may be recorded in a joint Will or in separate Wills, but it must be supported by strong evidence showing that both parties intended to be legally bound.
Legal complications with Mutual Wills
Mutual Wills are legally complex because they appear to conflict with fundamental principles of succession law. Normally, a person cannot make an irrevocable Will, and remarriage automatically revokes an existing Will. In addition, many Mutual Will agreements are never recorded in writing.
Despite this, the courts may intervene where one person has died having honoured the agreement. In such cases, the court can impose a constructive trust over the relevant assets. This means that the survivor holds the property for the benefit of the agreed beneficiaries.
While the survivor may use or manage the assets during their lifetime, they cannot give them away or redirect them through a new Will.
Mutual Wills in practice: A case example
A leading case – Legg v Burton – illustrates how Mutual Wills can arise in practice. A married couple made Wills leaving everything to each other and then equally to their two daughters. At the time, they made a clear verbal promise that neither would ever change the arrangement.
They reassured their daughters that the agreement was intended to be permanent. After the husband died, however, the wife’s circumstances changed. Over time, she became increasingly dependent on other family members and made a series of new Wills.
Each new Will reduced her daughters’ inheritance in favour of others. By the time she died, her final Will left only small gifts to her daughters. The daughters challenged the final Will in court.
The judge found that the original verbal agreement created Mutual Wills. As a result, all later Wills were declared invalid, and the original arrangement was enforced. This case shows that even informal promises can become legally binding if the evidence is strong enough.
Why Mutual Wills require caution
At first glance, Mutual Wills may seem attractive, particularly where couples wish to protect children from previous relationships or guarantee a fixed inheritance. However, they can create serious difficulties.
Life rarely remains unchanged after the death of a partner. The survivor may face financial hardship, health problems, new relationships, or changing family responsibilities. Mutual Wills prevent them from responding to these changes through their estate planning.
Another practical issue is that many people fail to review their Wills regularly. Even after major life events, Wills are often left unchanged for many years. With Mutual Wills, the opportunity to revise arrangements disappears permanently once the first person dies.
Alternatives to Mutual Wills
In many cases, Mutual Wills are not the most suitable solution. Other legal structures, such as trusts or carefully drafted Mirror Wills, can often achieve similar protection while preserving flexibility for the surviving partner.
These alternatives can balance certainty for beneficiaries with the ability to adapt to future changes.
Seek professional advice
Before entering into any binding estate planning arrangement, it is essential to seek professional legal advice. Mutual Wills carry long-term consequences and can be difficult, expensive, and stressful to challenge.
As experienced Lifetime Planning and Wills Solicitors, we can help you understand the risks, explore alternative options, and ensure your wishes are properly documented.