What is a mutual will?
Mutual wills are wills made by two people in similar terms, with an agreement not to change either will in the future. Often, but not always, the two people are spouses or civil partners. Mutual wills are not the same as “mirror” wills and B P Collins’ contentious probate team explores the differences below.
- Mirror wills are made on identical terms (often the whole estate to the surviving spouse or civil partner on the first death and to the children of the marriage or civil partnership thereafter) and the wills can be changed at any time, including after the death of the first of the two testators;
- Mutual wills are also wills made on identical or similar terms, but they are also accompanied by an agreement that the parties will not change their wills, even after the first death.
A mutual will is a contractual agreement which remains binding. This means that even if the survivor made a new will after the death of the first party, the executors of the later will hold the estate property on trust for the beneficiaries of the earlier wills and are obligated to administer the estate as if the earlier will remained valid.
Simply making a will at the same time as your spouse or civil partner is not enough to amount to a mutual will. There must also be an agreement not to revoke the wills.
Mutual wills might be used in some blended families. For example, if you have two spouses, each with children from earlier marriages, they might agree to leave all of their estate to each other on the first death and then equally (or perhaps unequally) to all of their children on the second death. A mutual will prevents the risk that the surviving spouse might change their mind and decide to change their will post-death to benefit only their own children
What happens if the survivor changes their mutual will anyway, regardless of their agreement?
Technically, the concept of mutual wills does not exist. It is a ‘legal fiction’. What has actually been created is a contractual obligation on the survivor to leave their estate in a particular way. If the survivor changes their will anyway, a trust is created whereby the executors of the new will hold the property on trust for the beneficiaries of the mutual will.
The beneficiaries would then have a claim against the survivor’s estate for their inheritance.
Our expert contentious probate solicitors can advise you in relation to claims made to enforce the terms of a mutual will.
Contact one of our disputed probate lawyers today in confidence at enquiries@bpcollins.co.uk or on 01753 889995.
