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Mutual Wills vs Mirror Wills: Mutual Wills vs Mirror Wills
Commonly, I hear the terms “mutual Will” and “mirror Will” used interchangeably. But legally, they are very different, and we should never confuse them.
In both cases, they are made by couples with broadly similar wishes. For example, we have all heard people say “everything to each other and then to the children.” In this way, the Wills “mirror” each other. But that begs the question: 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. In other words, there is, in effect, a contract between them that the Wills remain unaltered and are irrevocable. A wish, expectation, or common intention not to change their Wills is not enough. Instead, to create mutual Wills, there must be clear and convincing evidence of a binding intention. The Wills may be a single joint document or in separate documents.
However, a hugely complicating factor is that there may be no written indication of such an agreement, either in the Wills or elsewhere. And other factors that seem at odds with this principle are:
- legally, you cannot make a Will irrevocable; and
- the remarriage of the survivor automatically revokes the earlier Will.
However, if the first party dies honouring their side of the agreement, equity comes to the rescue:
- creating a constructive trust over the property to which the agreement relates
- on behalf of the agreed beneficiary(ies).
The survivor can deal with the property during their lifetime, but they cannot give it away.
Mutual Wills vs Mirror Wills: Legg v Burton
The case of Legg v Burton excellently illustrates a situation in which mutual Wills were held to have been created.
Mr and Mrs Clark made Wills in July 2000. The Wills left 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. Both parents reassured them 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 new Will progressively left 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—rendering invalid all of Mrs Clark’s subsequent Wills.
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. Believe me, that’s the case even following big life events or significant changes in circumstances. Understandably, we do not like dwelling on our mortality. And after making our Will, there’s a tendency to think, “that’s done so I can forget about it.” But on reviewing their Wills, maybe many years after making them, it’s not unusual for both parties to mutual Wills to agree to change the terms. However, once one of them dies, they lose that opportunity, and the agreement binds the survivor.
You should always seek advice before creating mutual Wills. There may be another legal mechanism to achieve the same or a similar result while still allowing the survivor the flexibility to change their Will to adjust to new circumstances.