By Caroline Foulger
Mutual Wills are Wills made by two or more individuals who agree not to cancel them without the agreement of the other(s). They have created a contract between them not to cancel or change their Wills; this agreement is legally binding and can be enforced, as is the case with any contract.
For some couples, the idea of entering into Wills which mirror each other and cannot be varied or cancelled once one has died may seem appealing, and there are some circumstances where they are appropriate. Families are increasingly less nuclear than they have been in previous generations and can stem from multiple relationships. There may be good reason to crystallise, once the first of a couple has died, who will benefit on the death of the survivor, especially if the survivor has inherited the estate of the first to pass away.
In the recent case of Legg and others v Burton and others  the High Court held that a married couple had made mutual Wills, on the basis of evidence of an express promise to each other not to revoke them.
In this case, subsequent to the mutual Will and following the death of her husband, the deceased made thirteen Wills which differed to the Will she agreed with her husband. The Court ruled that the deceased had promised her husband not to change or revoke her Will, and that he had relied on that promise. Accordingly, it was that mutual Will which dictated who benefited from the widow’s estate, and not any of the thirteen Wills she made subsequently.
The personal representatives of the widow were therefore ordered to hold her estate on a trust on the terms of the mutual Will. The widow had lost any ability to change her wishes once her husband had died; crucially, this restriction applied to her own assets, as well as those she inherited from him.
Whilst mutual Wills may be appropriate in some situations, they are often not the most suitable approach. There are other ways to structure Wills, such as using trusts, that are more appropriate and achieve the desired outcome of crystallising who benefits from your estate once your partner has died, whilst enabling them to benefit from your estate whilst they are alive.
Sometimes mutual Wills are created inadvertently, without a full understanding of the consequences. This is one of the reasons why obtaining legal advice when making your Will is so important. Unintentionally putting in place mutual Wills can result in costly and lengthy disputes over estates.
Equally, establishing mutual Wills when this is not the appropriate structure can cause problems. For example, if the survivor wants to consider Inheritance Tax planning measures in the future, the ability to do this may be curtailed.
At TWM, we have a dedicated team of experts across our offices who specialise in Wills ranging from the simple to the more complex and we can advise you about the best structure to achieve your wishes.
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