Mirror or mutual Wills

Research consistently shows that the percentage of people in the UK who do not have a Will hovers around 50%. So it is very important to make a Will for lots of reasons; your Will can set out:

  • who you want to benefit from your Will
  • who should look after any children under 18
  • who is going to sort out your estate and carry out your wishes after your death (your executor)
  • what happens if the people you want to benefit die before you
  • any charitable gifts.

So, making a Will is an important first step. But understanding what type of Will you are making when you have a partner involved is also vital and this is why it is a good idea to consider taking specialist legal advice, even if you think that your estate will be straightforward to deal with.

Understanding the difference between mirror Wills and mutual Wills is important - as a family who recently went to the High Court found out.

Mirror Wills arise when a couple make wills that are in the same form - so each Will is pretty much identical to the other. The key to mirror Wills, however, is that they are not binding, so it is possible for the survivor of the couple to change their Will after their partner has died and thus not give effect to their jointly held wishes.

This problem can be avoided by preparing mutual Wills. At the time of making the Wills, the couple agree that they will not change or revoke the Will even after the death of one of them. Mutual Wills create a binding legal agreement between the couple and the choice of the surviving partner is severely restricted as a result.

Mutual Wills usually contain wording to make it clear that they are intended to be mutual - in the recent case, the court had to decide whether Wills that did not contain this wording were capable of being mutual Wills.

Unsurprisingly the facts involved a situation where on the death of the first spouse, the survivor inherited everything, but the survivor then went on to change her Will and cut out her three step children, who were the children of her deceased husband. She left her entire estate to her own son and the matter reached court after she died soon after making the second Will.

The court held that the couple had not made mutual Wills in the first instance, saying:

'What is required to establish mutual Wills is a clear agreement, whether strictly contractual or not. Expectation, or trust, is not enough.'

This meant that the surviving spouse was entitled to change her Will and leave the entire estate to her son. One of the reasons that the claim for mutual Wills failed is that the couple had taken specialist legal advice. The solicitor who acted for them confirmed in the court case that he did not usually recommend mutual Wills.

To discuss this or any other Wills and probate matter, contact us.

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