Mutual Wills

13 Nov 2017 | Katie de Swarte
two ladies talking

Table of Contents

The High Court’s decision in the recent case of Legg and Burton v Burton [2017] has highlighted the issues surrounding the doctrine of mutual wills, which many people are unaware of.

What is a mutual will?

Mutual Wills are Wills made by two (or more) people with an agreement not to revoke (i.e. cancel or change) their will in the future once one of the two people has died.

Is a mutual will the same as a mirror will?

No, two people making wills on the same terms does not mean that the wills are mutual. For a mutual will to exist, there must be evidence of an agreement (not just hope) that the second to die will not revoke their will.

What are the consequences of making a mutual will?

If the requirements of a mutual will are met, a constructive trust is imposed on the surviving party. This means that he or she cannot make a new will in the future disposing of the property subject to the trust. The surviving party must adhere to the terms of the mutual will agreement even if they received no benefit under the will of the first to die. Although a marriage or entering into a civil partnership revokes a will, the terms of the agreement are still binding on the party to the mutual will.

What are the problems with making mutual wills?

There are a number of practical problems involved with making mutual wills, the main ones being:

  • Although the survivor cannot amend their will to dispose of the property received from the estate of the first to die – they are not under a duty to account for this property, so they could spend all of the estates during their lifetime so there is nothing left on their death.
  • The parties are restricted as to what they can do with their property in the future, and their ability to adapt their will to a change in circumstances is limited.

More information on: Naidoo v Barton: undue influence and the risks of mutual wills

I have a mutual will – what do I do?

If you have a mutual will that you no longer require, it may be possible to revoke this, but due to the complex nature of such wills, it is vital to obtain professional advice in the first instance. If you would like advice on making a new will, please get in touch with a member of our Private Client Team on 020 7485 8811.

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