What are mutual Wills and are they a good idea?

When it comes to estate planning, there are numerous options available, each with its own set of benefits and drawbacks. One such option, which often causes confusion due to its infrequent use but significant consequences, is the mutual Will.

What are mutual Wills?

Mutual Wills is a term that refers to two Wills created by two individuals, most commonly spouses or civil partners, with the agreement that neither party can alter or revoke their Will without the consent of the other, even after the first party's demise. This means that the terms of the Will essentially become binding on the surviving partner.

In order for a Will to be considered mutual, there needs to be an agreement between the two testators (those making the Will). A simple similarity in terms or a shared intention is not sufficient to establish a mutual Will. The Wills can exist as a single joint document or two separate ones.

How do mutual Wills differ from mirror Wills?

The distinction between mutual Wills and mirror Wills is often a source of confusion. While both types of Wills involve two individuals creating Wills in similar terms, there is a crucial difference.

As the name suggests, mirror Wills are essentially identical Wills created by two individuals. However, they can be changed in the future without the other party's consent. In contrast, mutual Wills involve an agreement that neither party can alter or revoke their Will without the consent of the other.

This distinction is crucial, as it implies that mutual Wills restrict the ability of the surviving testator to amend the Will, even after the first testator's death.

The advantages of a mutual Will

The primary advantage of mutual Wills lies in their ability to provide certainty. That is, they can ensure that the survivor cannot alter the Will after the first death. This can be particularly appealing in certain family situations.

For instance, consider a second marriage where each spouse has children from a previous relationship. They may wish to ensure that both their new spouse and their own children are provided for after their death. A mutual Will can provide a solution, ensuring that the survivor cannot alter the Will to exclude the children of the first spouse.

The disadvantages of a mutual Will

The main disadvantage of mutual Wills is their inherent lack of flexibility. As they restrict the ability of the surviving testator to amend the Will, they may not be able to adapt to changing circumstances, whether these changes are familial or financial.

Additionally, mutual Wills limit the ability of the survivor to make lifetime gifts for inheritance tax purposes or take advantage of more favourable legal or tax advice. Furthermore, disputes can arise over whether the Wills were intended to be mutual, especially given that the agreement to create mutual Wills does not need to be in writing or stated in the Will itself.

Alternatives to Mutual Wills

Given the potential issues associated with mutual Wills, it's worth considering alternatives. The most common alternative is the use of a trust. For example, the Wills could create life interest trusts, allowing the estate of the first person to pass to be used by the survivor during their lifetime while ultimately protecting it for the deceased's children.

Professional Advice on Mutual Wills

Given the complexities and potential issues associated with mutual Wills, it's crucial to seek professional advice.

While mutual Wills can provide a sense of certainty, their inherent inflexibility and potential for legal disputes make them a less common choice for estate planning. It's crucial to seek professional advice and consider all available options before making a decision.

For further information and trusted legal advice regarding Wills and Will disputes, get in touch with us at Carlsons Solicitors.