Mutual Wills are Wills made by two parties (usually partners) who wish to create a legally binding obligation on each other to not alter their Will after the first party’s death.
Mutual Wills are mostly used by blended families; where partners are either married or unmarried and have children from previous relationships. In these cases, most often than not, both parties wish to provide separately for their children as well as their partner in the event of death.
Essentially, Mutual Wills create a binding contract between the two parties that following death the remaining partner cannot change provisions made within their Will, save for administrative changes for example.
If the remaining partner did create a new Will, then the executors of what was the Mutual Will would challenge the validity of the newly created Will in the event of death in order that the Mutual Will remains the Last Will and Testament of the deceased.
How do they differ to Mirror Wills?
Mutual Wills have a very different purpose to Mirror Wills. Where a Mutual Will cannot be altered other than with the consent of both parties, a Mirror Will can be amended or revoked without giving notice to the other party and even after death of the first party.
With Mirror Wills there is a risk that should you die before your partner, your wishes will not be carried out by them as you had agreed and there is no enforceability to that. Of course, in the instance of blended families it is more prevalent to have a Mutual Will rather than a Mirror Will.
It is a matter for you to decide whether Mutual Wills or Mirror Wills are best for you. There are benefits associated with creating Mirror Wills as opposed to Mutual Wills given that they provide more flexibility as they can be changed to reflect familial or financial changes without the consent of both parties.
More information on Mirror Wills can be found in this article we created.
The advantages of creating Mutual Wills
· Beneficial as they reflect the wishes of both parties and provide security for a blended family.
· Provides certainty that your wishes will be carried out and your beneficiaries provided for even after death of the first party.
· Binding from beyond the grave.
· Can only be amended provided both parties agree and are still alive or by one party if administrative changes are required like altering an address.
The disadvantages of creating Mutual Wills
There are some points to consider before creating Mutual Wills and both parties must feel comfortable with the below before making a final decision.
· Given that Mutual Wills cannot be altered after the first death, they restrict the surviving partner from being able to plan for inheritance tax purposes or taking advantage of more favourable legislation.
· When there is a large amount of time that passes between the death of the first partner and the second it may be said that the Mutual Wills reflected the wishes and feelings of the parties at the time of creation but not at the time of death of the second party especially where there have been significant financial and familial changes.
· There have been notable disputes within the Courts with regards to Mutual Wills and their enforceability given that there is a possibility of undue influence. It is therefore sensible to have solicitors draft your Mutual Wills to ensure that they are executed properly and have little opportunity to be challenged. Please contact our Private Client department for further information.
Should we get Mutual Wills?
It is simply a matter of preference but before making a Mutual Will you should ensure that you are entirely clear on the legal consequences of doing so. Executing a Mutual Will is entering into a binding contract with your partner and is irreversible without both party’s consent. Agreement and irrevocability are at the heart of Mutual Wills.
Below are some questions that you should ask yourself before creating Mutual Wills:
1. Do you intend for your Wills to be irrevocable in the future?
2. Do you intend for all your future assets including any inheritance to be distributed by the current Mutual Will?
3. Are you content with leaving each other with no opportunity to tax plan effectively in the event of death?
If your answer is no to any of the above questions, then you should consider the below instead.
Other alternatives
You and your partner may wish to make single Wills separately or you may wish to make Mirror Wills together. You can include lifetime interest trust clauses within Mirror Wills that gives each partner the assurance of housing whilst they are alive without gifting them the capital benefit of the property.
For more information on what may be beneficial for you and pricing, please contact our Private Client team and they will be happy to assist you with your enquiry.
