Mutual wills - what are they and when do you need one?

What are mutual wills?

The term ‘mutual wills’ is sometimes mistakenly used when intending to refer to mirror wills. But the two are not the same – there are some crucial differences in how they work and the potential legal effect of them.

When people make mutual wills, they are actually doing three things:

  • agreeing to make wills in a form that they have specified;
  • agreeing not to revoke their will without the consent of the other; and
  • going ahead and making the wills in light of those agreements.

Clearly, the agreements have to be reached, and the wills have to be made, for mutual wills to come into existence. If the parties make an agreement, but do not go on to make the wills, the agreement does not stand.

Normally, a will – even a mirror will – can be revoked by the testator at any time. (Where a couple have made mirror wills, each will is an entirely independent document, even though they are intended to match or complement each other.) The position with mutual wills is different.

What are the effects?

The effects of mutual wills are that:

  • during their lifetime a testator is not allowed to revoke the will without the consent of the other;
  • after the death of one of the testators, the other is obliged to maintain the form of will that was agreed – they are not allowed to change it or revoke it;
  • their property is held on a constructive trust preventing the survivor from disposing of it differently;
  • the survivor will be limited in what they can do with the property even while they are still alive, so as to prevent them defeating the purpose of the agreement.

What are the requirements?

Mutual wills are strict agreements, which potentially prevent people from disposing of their property as they wish. Because of this, the law requires clear evidence that the testators actually agreed that the wills would be mutually binding. It would need to be more than a shared intention or expectation that property would be disposed of in a particular way, to convince the courts to enforce mutual wills.

The agreement does not have to be in writing, but it would be hard to show the necessary intention without some written evidence. The best way to show the evidence may be to record the agreement in the will itself.

Like mirror wills, mutual wills can be made between people other than married couples and civil partners

Unlike mirror wills, mutual wills can be made by more than two people. Clearly, the more people agreeing to make mutual wills, the more complicated the situation is likely to be.

Mutual wills are legally complex, and quite often the property arrangements that a testator may wish to achieve can be managed in other ways – such as by the use of trusts – which are more flexible and easier to prove. It is less common than it used to be to have mutual wills, and specialist advice should always be taken if this route is being considered.