Are Mutual Wills Enforceable?

What are mutual wills in the UK?

Mutual Wills in the UK occur when a couple draw up Wills at the same time that are identical or virtually identical.

Crucially, to be mutual Wills the intention is that both parties should agree if any changes are to be made during their joint lives and a surviving partner will be limited to the changes that they can make to their Will following the death of the first partner.

For example, Mr and Mrs Smith draw up mutual Wills at the same time, initially leaving their entire estate to each other. Both Wills go on to state that, following the death of the second spouse, all assets will go to their children.

By law the couple can alter the terms of their mutual Wills as many times as they like while both are still alive and with the agreement of each other. If Mr Smith were to die first, his wife would inherit all his assets under the terms of his Will. As it is a mutual Will, however, the intention would be that Mrs Smith would not change her Will to alter who her beneficiaries would be on her death.

Upon Mrs Smith’s death, all of her assets would go to the children she had with Mr Smith – this would apply even if she had subsequently had more children with a new partner.

The nature of mutual Wills is enforceable by law and so it is important to get expert legal advice on the subject.

Should you have mutual Wills?

A common motivation for having mutual Wills is the peace of mind of knowing that, should your partner survive you, they will not be able to disinherit your children by leaving their estate to a new partner or family.

Some people argue, however, that there are major disadvantages to having mutual Wills, including:

Lack of flexibility

As we have seen, a key feature of mutual Wills is that they are not meant to be altered once one partner has died. It could be considered unfair, particularly in the case of younger couples, that the surviving partner cannot alter their Will to reflect changing circumstances – such as growing more distant from their children or starting a new family.

A solicitor could help partners add some flexibility to their Wills – for example, by allowing the surviving partner to leave 50 per cent of the combined estate to whomever they wish, with the original beneficiaries receiving the other 50 per cent.

Lack of clarity

They are two ways in which uncertainty over the nature of mutual Wills could lead to much ill feeling and even a stressful and expensive court case.

Firstly, the mutual Wills do not need to state that there has been such an agreement between the couple. Following the death of one partner this can lead to much argument over whether or not the Wills were mutual. Should the case go to court, testimony from witnesses over what the stated aims of the couple were over the drawing up of their Wills is likely to be very important.

Secondly, mutual Wills may not be clear about the extent to which the surviving partner can give away assets during their lifetime – even though this could considerably reduce the eventual value of their estate.

The potential for uncertainty and dispute that we have seen above underlines the advisability of asking a solicitor for assistance in drawing up mutual Wills couched in precise and unambiguous terms.

What is the difference between a joint Will and a mutual Will in the UK?

A mutual Will is one form of joint Will; the other type of joint Will in the UK is a mirror Will. This operates in a similar way to a mutual Will but with the important difference that the surviving partner has much more freedom to subsequently change their own Will.

Some people would argue that the term ‘joint Will’ is misleading since, even where a couple are in complete agreement about how they want their estate to be allocated, it is still necessary to draw up two separate documents.

Is a mirror will a mutual Will?

As we have seen above, mirror Wills and mutual Wills are both forms of joint Will. The most important difference is that mutual wills take the principle a stage further by making it more difficult for a surviving partner to change their own Will following the death of the first partner.

The main advantage of a mirror Will in the UK, therefore, is that they can be altered to take account of changing circumstances throughout the life of the remaining partner.

The main disadvantage is that there is nothing to prevent the surviving partner from subsequently disinheriting the original beneficiaries – often the couple’s children.

Do mirror Wills and mutual Wills require probate?

Mirror Wills and mutual Wills are likely to need to go through probate in the usual way (as with all Wills, probate may not be required for estates of less than around £5,000).

It is common for two partners to name one another as the executors of their Wills. With joint Wills, however, it is very important that each document should contain at least one other executor in case the partners die at the same time or within close proximity to each other.

Where can I find out more about mirror Wills and mutual Wills in the UK?

When it comes to making Wills, couples can face a trade-off between safeguarding the interests of their children and ensuring that the surviving partner has some discretion over how their estate is distributed.

The way to balance these two aims is likely to vary depending on family circumstances and the complexity of the estate.

Wilson Browne has a wealth of experience in all areas of Wills and inheritance. We will take the time to get to know you and understand your wishes so, acting with expertise, sensitivity and integrity, we can help you make the right decisions for you and your family.

We offer a friendly, professional service from our offices in Corby, Higham Ferrers, Kettering, Leicester, Northampton and Wellingborough, and are also happy to make personal visits at home for clients with mobility issues.

For more information, please call 0800 088 6004 or complete our online contact form.