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GETTING A MUTUAL WILL COMPLETED.
What is a Mutual Will?
Many couples draw up Wills at the same time which has identical or near-identical terms. These Wills are usually known as “mirror wills” and are extremely common. Mutual Wills, however, go one crucial step further than mirror wills: not only are the Wills often substantially similar but in addition, an agreement exists between the individuals making the Wills (which is not necessarily reflected in the Wills themselves) that the Wills will not be changed. Mutual Wills are more common in elderly couples and are not usually practical for much younger people as many things can change before both spouses die.
What are mutual Wills in detail?
Mutual Wills are Wills drawn up by at least two people and are signed following an agreement between the individuals which it is intended should bind the survivor of them both. Each individual agrees with the other not to alter their Will after the other dies. Mirror Wills, which are made in substantially the same terms, do not qualify as mutual Wills without that crucial agreement between the individuals that the survivor of them will be contractually bound not to alter their Will.
Mutual Wills can be inflexible and rigid as the agreement to make mutual wills can be evidenced outside of the Will, this can lead to uncertainty and disputes as shown in certain court cases. However, case law confirms that the doctrine of mutual wills can be ‘tailored’ to individual circumstances rather than being ‘all or nothing’.
Are trusts preferable?
A modern trust by comparison is a flexible way of protecting the assets of the first of a couple to die so that they can be guaranteed to pass to a couple’s chosen beneficiaries after the survivor’s death; while at the same time the surviving spouse retains the freedom to make a new Will and to cater for changing life circumstances. The decision between whether to use mutual Wills or a trust will in the end depend very much on the facts of each individual case.
Although a single document, the joint will is a separate distribution of property by each executor (signatory) and will be treated as such on admission to probate. Mutual wills are any two (or more) wills that are mutually binding, such that following the first death the survivor is constrained in his or her ability to dispose of his or her property by the agreement he or she made with the deceased. Historically such wills had an important role in ensuring property passed to children of a marriage rather than a spouse of a widow or widower on a remarriage.
