What is a Mutual Will?

mutual will

We all know the importance of making a Will to ensure that your estate is distributed according to your last wishes. With all the different types of Wills,, it may be difficult to decide which type of Will best suits your situation. One type of Will available is a mutual Will, which is often confused with a mirror Will.

Despite the confusion between a mutual and a mirror Will, they are very different so it’s essential to know the difference between them. 

What is a Mirror Will?

A mirror Will is exactly that.  It “mirrors” another Will, however, each person has their own Will.

An example of this is a married couple who instruct us to draft two mirror Wills for them where the husband leaves everything to the wife, and the wife leaves everything to the husband when they die. Then, after the surviving spouse dies, everything is left to their children.  Although both parties have identical Wills, they are both free to change their Wills at any time in future.

What is a Mutual Will?

A mutual Will is a Will written by two people. However, unlike a mirror Will, both parties are in agreement that they will not amend or revoke the Will, even if one of the parties passes away.

Before creating a mutual Will, both parties must show clear evidence that they understand that neither of them will be able to change or revoke their Will without the other party’s consent. If one party loses capacity or dies, it is impossible to get consent therefore the Will of the party that has capacity cannot be changed.  It is essential to seek advice from a qualified solicitor before making a mutual Will so that the parties can understand that they will be bound by that Will.  The beneficiaries of the first one to die can challenge any future Will of the survivor which is expensive.

What to Include in a Mutual Will

A conversation between both parties on what you should include in a mutual Will is vital. It’s also best to consult a solicitor at this point.

Some things you should consider include:

  • The value of any property and possessions owned by both parties
  • Money that both parties have
  • Who should benefit from the Will
  • Guardians for minor children
  • Who should be the executor

Updating a Mutual Will

As with any type of Will, you should review and update it every five years as well as after significant life changes such as a marriage, divorce, having a child, or purchasing a property.   A mutual Will can only be changed if both parties consent to it.

Advantages of a Mutual Will

A mutual Will eliminates the risk of the surviving party changing the Will after the first party dies. An example of how this could be beneficial is in the instance when a couple marries and each has children from a previous relationship.  Each parent would want to ensure that, should they die first, their children aren’t excluded from benefiting from the estate that both parties accumulated in their lifetime. This could happen, for example, if the surviving spouse  remarries. If this were to happen, a mirror Will could be revoked and the children of the first to die might be excluded from a future Will of the second to die. The benefit of a mutual Will  means that the interests in the original Will cannot be changed, therefore the children of the first to die would also benefit as their share would be protected.

Disadvantages of Mutual Wills

Due to the complex legalities and the increased risk of legal disputes arising from mutual Wills, they are not common and many solicitors don’t typically recommend them to their clients. The main drawback to a mutual Will is the lack of flexibility when circumstances change. This is particularly troublesome if there has been a substantial amount of time between the deaths of the two testators. A mutual will can limit the surviving party’s ability to plan for a lifetime plan regarding gifts. 

Other Options

An alternative to a mutual Will is using a Trust. A life interest trust would allow the surviving party to benefit from the Trust during their life and safeguard the share of the first one to die at the same time. It also allows the surviving party to make lifetime gifts from their own share of the estate or change their Will should they want to do so.

Elizabeth Middleton Solicitors is here to help you protect you and your assets

When making your Will, it’s essential to ensure that it is well prepared and addresses all possible scenarios to minimise the possibility of your Will being challenged. That makes it all the more important to engage the services of an experienced, qualified solicitor to ensure your Will is written correctly.

At Elizabeth Middleton Solicitors, we know that clients’ circumstances are different, so we take a personalised approach when writing a Will to ensure it’s right for each client.

Contact us today to arrange a meeting.