21 September 2017
Mutual wills: can you change them when your spouse passes away?
Recently, the High Court upheld the mutual wills of a married couple, after evidence confirmed that they had promised each other not to revoke them, despite the surviving party making 13 additional wills after her spouse passed away.
Naadim Shamji from B P Collins comments on the High Court ruling in Legg and others v Burton and others :
“The recent High Court case is an important reminder of the potential consequences of making mutual wills.
“Although the couple in this case had sought legal advice when preparing their wills, and indeed had been told by their solicitor that they were free to change their wills in the future, their conduct at the time of signing the wills and afterwards confirmed that the couple intended to be bound by their promise not to amend their wills in the future, therefore became bound not to change their wills from that point forward.
“Clearly, as the second spouse did change her will a further 13 times, she did not really intend to be bound by that promise.
“While clients may prepare wills in the expectation that they are to be set in stone forever and unchangeable, and may make promises to that effect, the future circumstances of a couple might change in a way which is unexpected at the time the wills are written. In that context, it is then clearly undesirable that when the first spouse dies, the surviving spouse is effectively unable to change the provisions of their will.
“Of course there are couples who do wish to have mutual wills, but the choice to do so should be made after careful consideration and after a solicitor has had an opportunity to explain the potential pitfalls.”
Naadim and B P Collins’ wills, trusts and probate team can advise on all aspects of planning for your future including mutual wills. They also offer will reviews, which are recommended every five years due to potential changes in personal circumstances and frequent amendments to the law.