Wills are generally described as ‘mutual’ when two people make a binding commitment that their wills will remain in the same form as when they were initially put in place. After the death of one party (usually a spouse or partner), the surviving party will not change their will, honouring the thinking behind the will created with their partner or spouse.
For example: Mr and Mrs Smith make wills leaving everything they own to each other and then to their children in equal shares. If they choose to create mutual wills, after Mr Smith’s death, Mrs Smith has agreed not to change the will and will honour the intention to benefit their children. This is the case even if Mrs Smith has then remarried or has fallen out with her children.
In principle, mutual wills are appealing. People often want their wife, husband or partner to inherit all their assets. And then subsequently, they want to know that these assets will ultimately pass to their children or whoever their beneficiaries are.
In reality, mutual wills are often problematic. Here are a number of scenarios where mutual wills can become tricky:
- What happens if circumstances change dramatically after the first party’s death and the surviving party wants to make provision for a different beneficiary than the one that was initially intended? The surviving party might even go onto to have more children, or want specific provision for a grandchild with special needs.
- Exactly which assets come within the mutual will agreement? What if the survivor’s assets increase substantially; are they still bound to leave these additional assets to the original beneficiaries? If the surviving spouse has remarried or met someone else, they may feel that it is only right for some of their ‘new’ wealth to go to this new person in their life.
- What if the surviving party spends all the inherited assets, or the assets are needed for care costs. Will there be any capital left for the ultimate beneficiaries?
- If the surviving party decides not to stick to the original agreement, then they could, in theory, try to make a new will or lifetime gifts. Whilst this could be in breach of the agreement, it may be extremely difficult for the mutual will to be enforced.
It is often preferential to include a form of express trust in a will rather than relying upon a mutual will. Legal advice about the pros and cons of different types of will and options within a will is crucial to avoid later complications.
For further information, please contact Mark Shaw on 01274 519351 or email mark.shaw@awbclaw.co.uk.
3 July 2024
Further Reading:
Intestacy – the question of inheritance
Contested wills going to court: 140% increase in the last 10 years