Many couples are under the misapprehension that they only need one Will between them. In law, there is no such thing as a “joint” Will. It is very common, however, to make Wills on similar terms under a ‘mirror’ or ‘mutual’ Will. The failure to understand the crucial distinction between these two different legal concepts has far reaching consequences.
What is a mirror Will?
One Will “mirrors” the other Will. The terms are nearly identical with assets left to the same beneficiaries. For example, a husband leaves everything to his wife and then in equal shares to the children, and correspondingly, the wife leaves everything to her husband and then in equal shares to the children. The Wills mirror each other but crucially, each testator is free at any time to revoke their Will and make another one.
What is a mutual Will?
A mutual Will is a Will and an agreement not to change that Will. The terms may be similar to a mirror Will, however, there is an additional contractual agreement between the testators not to revoke their Will without the other’s consent. The agreement is enforced following the death of the first testator by means of a constructive trust. Any attempt by the survivor to revoke the mutual Will by disposing of property in a different way will be ineffective.
Fact or fiction?
The doctrine of mutual Wills is based on legal fiction. It is a basic democratic freedom, subject to clearing tax with HMRC, to be able to dispose of your property as you so wish. A person is always at liberty to revoke their Will and make a new one. However, in the case of mutual Wills, the law of equity will override this legal principle and give effect to the agreement enshrined in the mutual Will.
The key requirement for a mutual Will is that there must be evidence of a binding intention between the parties that their estate is to be distributed in a particular way, that such an agreement cannot be revoked unilaterally and is binding throughout the lifetime of both parties. The surviving party must have intended the Will to reflect this agreement.
The legal principle that the survivor can execute a new Will still applies, but the property which was left under the original mutual Will becomes subject to a constructive trust. The original beneficiaries remain entitled to receive the property irrespective of what the replacement Will states.
Smoke and mirrors
The key differences between mirror and mutual Wills are:
- a mutual Will is a binding contractual agreement; a mirror Will is not;
- a mutual Will cannot be revoked or varied without the consent of the other party;
- a mutual Will is only enforceable if there is clear evidence of an agreement to create the mutual Will and an intention that the Will is irrevocable;
- if the survivor was to remarry, both mirror and mutual Wills are revoked by statute but in the case of a mutual Will the assets under the Will are protected by a constructive trust which will override any new Will; and
- a mutual Will binds the survivor in a way a mirror Will does It imposes a legally binding obligation on the survivor not to change the agreement by disposing of the estate in a different way.
Due to the way the survivor is bound by the mutual Will, the Courts require a very high degree of proof that there was an agreement between the parties for the Will to be irrevocable. The evidence required must be “certain and unequivocal,” “clear and satisfactory.” Good practice dictates that a mutual Will should include an express provision to this effect.
Mirror Wills are easy to simple to follow and appear fair and balanced between two people. Should circumstances or intentions change, a mirror Will can be altered or revoked.
The advantage of a mutual Will over a mirror Will is it prevents change when one party dies. This ensures that property passes to children of a marriage rather than a widow or widower’s spouse on remarriage.
Mirror Wills suffer from the drawback that the survivor is free to revoke the Will and make a new one, potentially following remarriage, which fails to provide for the children where the new spouse outlives the survivor. Similarly, the survivor of a couple in a second marriage disinherits stepchildren in favour of own natural children.
Mirror Wills are not specific to particular assets and contain no flexibility or direction on how assets should be maintained. One partner may not be the best person to take on ownership and management of an investment property. The other partner may not be suited to take over the family business. Such assets may have an equal financial value but come with responsibilities and active management. A mirror Will is not suitable due to the depreciation in value should the assets be mismanaged.
The strength of a mutual Will can also be its downfall due to its inherent inflexibility. Indeed, that is precisely its purpose. The restriction on the testamentary freedom of the survivor may prevent changes the other party would have agreed to, particularly if necessary in relation to a change in tax rules for example. Times change and what suits today may not suit tomorrow, particularly after the death of one party. The inflexibility to adapt a mutual Will can lead to unforeseen and often upsetting consequences for the survivor.
Very few mutual Wills are made each year, but a disproportionately high number of mutual Wills are contested. A mutual Will is rarely recommended by a lawyer as it is possible to achieve the same or better provision with testamentary trusts.
It is highly recommended that every person makes a Will. Obtaining good legal advice will ensure that your intentions are recorded properly and validly under the most suitable form of Will for your personal circumstances.
Hart Reade Solicitors is a full-service law firm with offices in Eastbourne, Hailsham, Polegate and Meads. We hold a Lexcel accreditation from the Law Society of England and Wales and are a member of The Association of Lifetime Lawyers. To make an appointment with one of our private client solicitors, please phone our office on 01323 727 321.
Please note, this article does not constitute legal advice.