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The terms “mutual Wills” and “mirror Wills” are often used interchangeably. But legally, they are very different and should not be confused.
In both cases, they are made by couples who, typically, have broadly similar wishes – we have all heard people say “everything to each other and then to the children.” In this way, the Wills “mirror” each other. But following the first death, can the survivor decide not to honour the other’s wishes? The answer lies in the principle of mutual Wills.
What are mutual wills?
Mutual Wills go one step further than mirror Wills, creating a legally binding agreement between a couple that the survivor will not change their Will. A complicating factor is that there may be no written indication of such an agreement, either in the Wills or elsewhere. Nevertheless, if there is clear and convincing evidence of a binding intention between the couple that neither of them is entitled to change their Will without the other’s consent, they will have created mutual Wills.
A factor that seems at odds with this principle is that Wills in themselves cannot be made irrevocable. And should the survivor remarry, the earlier Will is automatically revoked. However, if the first party dies having honoured their side of the agreement, equity comes to the rescue, imposing a constructive trust over the property to which the agreement relates, on behalf of the agreed beneficiary(ies). The survivor is free to deal with the property during their lifetime, but they cannot give it away.
Legg v Burton
An excellent illustration of a situation where mutual Wills were held to have been created, was the case of Legg v Burton.
Mr and Mrs Clark made Wills in July 2000, leaving everything to the survivor of them and then, on the survivor’s death, equally to their two daughters, Ann and Lynn. When they made their Wills, Mr and Mrs Clark made a verbal promise to each other that they would never change the terms. As the Judge in the case heard, they wanted this agreement to be “set in stone.”
Ann and Lynn were with them when they made their Wills. After the solicitor had left, they questioned their parents on what would happen if either of them changed their mind after the other had died. They were reassured by both parents that this would not happen as they had already made a promise to each other.
The following year, Mr Clark died. Initially, Mrs Clark relied heavily on her daughters. But as time went by, changing circumstances meant that Mrs Clark relied increasingly more on her grandsons and the partner of one of them. As a result, in the years following her husband’s death, Mrs Clark made no less than 13 new Wills, each progressively leaving more of her estate to her grandsons and the partner, and less to Ann and Lynn. When Mrs Clark died in 2016, her last Will left only small cash gifts to her daughters. They claimed that the Will made in July 2000 should be upheld.
At trial, the Judge found that the verbal promise made between Mr and Mrs Clark in July 2000 had created a legally binding agreement – mutual Wills – which rendered invalid all of the subsequent Wills made by Mrs Clark.
Caution required
When a couple makes their Wills, binding each other may seem like a good idea. But there are circumstances where it may be beneficial for the survivor to have the flexibility to make changes.
Another consideration is that people are generally not great at reviewing their Wills, even following big life events or significant changes in circumstances. Understandably, we do not like to dwell on our mortality, and after we have gone to the effort of making our Will, there is a tendency to think, “that’s done so I can forget about it.” On reviewing their Wills, maybe many years after making them, both parties to mutual Wills may agree it is a good idea to change the terms. However, once one of them dies, that opportunity is lost and the agreement binds the survivor.
You should always take advice before seeking to create mutual Wills. It may well be that there is another legal mechanism to achieve the same or a similar result to the one you are both seeking while still allowing the survivor the flexibility to change their Will to adjust to new circumstances.