Though each individual has to have their own Will, couples tend to make wills together. This can make a lot of sense, especially if the couple share assets and/or children. In these situations, a solicitor will often advise making mirror wills. This is when each half of a couple makes an individual Will that essentially mirrors the other half’s Will.
|Spouse A’s Will||Spouse B’s Will|
|Names Spouse B as executorLeaves all assets to Spouse BIf Spouse B has died first, all assets are left to their children.||Names Spouse A as executorLeaves all assets to Spouse AIf Spouse A has died first, all assets are left to their children.|
When mirror wills like this have been put in place, it’s not uncommon for the surviving spouse to make a new Will after the loss of their partner. This is perfectly legal, as someone who has made a mirrored Will with a spouse is under no legal obligation not to change that Will at a later date.
There are many situations where it would be advisable for the surviving spouse to make a new Will. This might be:
- To ensure the Will is up to date and accounts for any recently acquired assets.
- To replace any named executors that are no longer able to act.
- To add a provision for any newer family members, such as grandchildren.
The surviving spouse would also need to make a new Will if they were to remarry, as marrying again would render their existing Will invalid.
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How does a mutual will differ from this?
Mutual wills have a very key difference to mirrored wills: they cannot legally be changed after the death of the first partner.
In essence, mutual wills represent a contract between two people that neither party will change or revoke their Will without the consent of the other. This means that the surviving partner remains bound by the Will and cannot change it, even if their personal circumstances change dramatically.
There are situations where making a mutual Will might seem like an attractive option. This is usually because a couple want to be sure that their children (either shared children, or any children from previous relationships) would be provided for after the death of the second spouse.
Why do we not advise making mutual wills?
Most solicitors will advise against making mutual wills. The main reason for this is that making a legally binding Will can cause real difficulties later in life if circumstances change. This complete lack of flexibility can be particularly problematic if one partner dies a long time before the other.
For example, if one partner died unexpectedly soon after making a mutual Will and the surviving partner went on to remarry and have another child, they would not legally be able to bequeath any of their assets to their second spouse and younger child.
A surviving partner also wouldn’t be able to:
- Make cash gifts to their children before their death, even if their children were in significant need.
- Change the executors on their Will.
- Add in legacies for any new family members or close friends.
- Make changes to their Will for inheritance tax planning circumstances.
Another key reason to avoid making a mutual Will is that they can lead to legal uncertainty, which could leave your beneficiaries at risk of becoming embroiled in a contentious probate lawsuit.
McLean v McLean, 2023
Earlier this year, an appeal was brought to the High Court regarding mutual wills. The case hinged on the question of whether or not a pair of mirror wills had been intended as legally binding mutual wills.
Maureen and Reginald McLean made the mirror wills in 2017. Each of these wills left their estate to the surviving spouse, with the survivor bequeathing the whole estate to their four children in equal shares. Crucially, three of the children were from Reginald’s previous relationship. When Reginald died in 2019, Maureen inherited the entire estate. Just before her own death that same year, she wrote a new Will that cut out her three stepchildren and left the entirety of her estate (including everything she’d inherited from Reginald) to her biological son.
Reginald’s other three children contested the case on the claim that the wills made in 2017 had been intended as mutual wills. If this was the case, it would mean that Maureen had not had the right to revoke hers after Reginald’s death, and that the Will she’d made in 2019 was invalid.
Unfortunately for the three stepchildren, both their original case and their appeal were dismissed. The court found insufficient evidence that there had been a binding contractual agreement regarding the wills between Maureen and Reginald. Rather, the mirror wills had been made on the basis of trust. Even though Maureen had asserted during a meeting with a solicitor that she would not change her Will or disinherit her stepchildren, the court determined that this amounted to a moral obligation, not a legally-binding one.
The result of this was that Maureen’s 2019 Will was deemed valid and her son inherited the entirety of both Maureen and Reginald’s estates. The three stepchildren received nothing.
What alternatives are there to making a mutual Will?
Mutual wills could understandably seem like a good solution for those hoping to avoid a situation such as McLean v McLean. However, the examples above show that in practice they can often be both restrictive and contentious.
Luckily, there are other options. We’d recommend writing wills that include life interest trusts. This would allow you to ensure your spouse was able to continue benefitting from any shared assets during their lifetime, while still naming your children as the ultimate beneficiaries.
For example, a life interest trust would’ve allowed Reginald McLean to grant Maureen a lifetime tenancy of the property they shared while still ring-fencing his share for the children. Though Maureen would’ve been able to disinherit her stepchildren from her own share of the property, Reginald’s share would’ve passed to all four children on her death, just as he had intended. If you and your partner are making a Will and wish to ensure your interests would be protected, why not meet with one of our experienced solicitors to explore your options?
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