Mutual wills are a type of will, not to be confused with mirror wills, made by two or more people who agree that they will not, in the future, revoke or amend their wills, without the other parties consent. As soon as one of the parties to that agreement dies, it becomes impossible for the remaining parties to alter their mutual wills.
Mutual wills therefore run contrary to the central principal that a person with testamentary capacity, meaning the mental capacity to make a will, has the freedom to make and amend his will as and when he pleases.
If a party to a mutual will, does change his will at a later date, contrary to the agreement previously reached, the personal representatives under the new will are deemed to hold the assets to which the mutual wills relate, on trust for the beneficiaries of the earlier mutual will. It can therefore be seen that creating mutual wills can severely affect a person’s choices in the future, particularly as circumstances inevitably change.
It is important to note that surprisingly, the agreement to create mutual wills need not be specifically stated in the will and need not even be in writing.
For all the above reasons, mutual wills are relatively uncommon and the thought of making wills which could potentially be unchangable in the future probably would not cross many people’s minds. However, a recent case at the High Court has brought this issue to the fore.
Why make mutual wills?
Given the permanent consequences that can result from making this type of will, why would individuals wish to make them? They tend to be used by couples to ensure that property passes to children within a relationship on the fear that if one partner died and the surviving partner remarried, the children may be left with nothing. They can however be used by any number of people who wish, for reasons personal to them, to bind each other into leaving their estate in a certain way.
Mabel Cook and Ethel Wilson
In July 2010 a case surrounding mutual wills was heard at the High Court. The case concerned two elderly sisters, Mabel Cook and Ethel Willson. The sisters were described by some as “two peas in a pod” who did everything together and lived together for a number of years after their husbands passed away.
In 1991 they had wills prepared which were, in the whole, identical. They appointed each other as their sole executrix and their sole beneficiary. Both wills then provided that on the second death, another two individuals would administer their estate and what was left of their combined estate would be divided between 15 family members and friends. The case report states that the sisters had carefully divided up these 15 shares to ensure that the sisters’ separate family members each received similar amounts.
Neither of the wills expressly stated that they were mutual wills, that they could not be revoked or amended at a later date, or that the wills were being made in accordance with a prior agreement reached between the sisters. However it is clear a lot of thought had gone into the terms and it had been carefully discussed.
Mabel died in 1995, aged 83. In 2003, Ethel then instructed solicitors to draft a new will. She changed the executors and made amendments to the 15 beneficiaries. Ethel was said to be removing people from the will who had died and rewarding those who had helped her.
In 2006, Ethel made a further will. The will made a lady called Mrs Fraser the sole executrix and sole beneficiary of her estate. Mrs Fraser had been the hairdresser for Ethel and following Mabel’s death is reported to have been of great help to Ethel.
On 11 November 2006, Ethel died. Three of the 15 beneficiaries under the original 1991 wills then brought a legal action against Mrs Fraser claiming that the 1991 wills were mutual wills and that they should in fact inherit Ethel’s estate totaling £380,000, not Mrs Fraser.
The Judge’s Decision and Reasoning: The 1991 wills were mutual wills
The claim of the beneficiaries under the 1991 wills succeeded. The Judge deemed the initial wills to be mutual wills and therefore following the first death of Mabel they were irrevocable by Ethel.
The judgment is interesting because despite there being no written documented evidence of the 1991 wills being mutual they were held to be so. The Judge’s reasoning as to why they were mutual wills can be summarised as follows:
- the sisters described both wills to friends as “the will”;
- they made the wills on identical terms;
- much thought went into them being fair to both sides of the sisters’ family;
- witness evidence indicated that it was the sisters’ intention that the wills were not to be altered in any way; and
- whilst the sisters had not expressly said that the wills were binding, certain family members had taken this to be the case.
The judge explained that he had to look at the balance of probabilities as to whether the sisters intended the wills to be irrevocable and he determined that they did. Furthermore as the ability to change your will as you please is such an important principal, very strong evidence was required to prove that the wills were mutual.
A number of interesting points come from this case which should be contemplated by both clients and will writers to ensure that the wishes of the client are accurately recorded and fulfilled.
If you are making a will with a spouse or relative on similar terms, discuss whether you intend the wills to be irrevocable in the future. If the wills are not intended to be mutual, an express clause stating this ought to be included in your wills. This can prevent costly arguments later.
For more information about this or another matter please contact Stephanie Dunderdale at the Private Client Department of Clarion on 0113 336 3355 or firstname.lastname@example.org.
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