What Are Mutual Wills And Should You Make One?

Planning for the future is one of the most important steps you can take to ensure your loved ones are cared for and that your estate is passed on according to your wishes. Most couples have the same goal: they want their estate to pass smoothly to their partner and, eventually, to their chosen beneficiaries (often children).

When it comes to ensuring that your wishes are respected after death, wills are essential. While many people create mirror wills, some couples opt for a more binding alternative: mutual wills. But what exactly are mutual wills? And are they the right choice for you and your loved ones?

In this detailed blog post, we’ll explore:

• The key differences between mirror and mutual wills

• How mutual wills work in practice

• The potential risks and limitations of mutual wills

• Alternatives that might offer greater flexibility for your estate planning needs

🪞 Mirror Wills vs Mutual Wills: What’s the Difference?

Before deciding whether mutual wills are right for you, it's important to understand how they differ from the more commonly used mirror wills.

🔹 Mirror Wills

Mirror wills are a popular choice among couples (whether married, civil partners, or cohabiting). As the name suggests, these wills are “mirrored” or identical in nature, but each will is written separately and reflects the wishes of the individual testator.

For example:

• Spouse 1 might leave everything to Spouse 2, and then to their children upon Spouse 2's death.

• Spouse 2 might leave everything to Spouse 1, and then to their children.

Key characteristic of mirror wills:

• Either spouse can change their will at any time, even if the other has already passed away, provided they have mental capacity. This gives each person flexibility, but it also means that the surviving partner has the legal right to alter their will after the other spouse's death.

  
  

🔐 Mutual Wills

Mutual wills, on the other hand, are a more binding arrangement. When a couple makes mutual wills, they do so with the intention of creating a binding contract that prevents the surviving spouse from altering their will after the first person has passed away.

Key characteristics of mutual wills:

• The wills are made together with the mutual understanding that the terms cannot be changed after the death of the first person.

• Once the first person dies, the surviving partner becomes legally bound by the will's terms. Even if they later remarry, change their mind, or want to leave their estate to someone else, they cannot revoke or amend the will.

• In essence, mutual wills lock in the estate plan for both parties, meaning that the surviving partner is required to follow through on the promises made in the initial wills.

  
  

🤔 Why Would Someone Choose Mutual Wills?

Mutual wills are most commonly chosen when there are concerns about the potential for the surviving partner to change their will after the first person dies. This may arise in situations where:

🔹 Blended Families

If you and your partner have children from previous relationships, you might be concerned that the surviving partner will favour their own children (or a new partner) in their will, excluding your children from the inheritance. Mutual wills can offer some peace of mind, ensuring that your children receive their inheritance even if the surviving spouse changes their mind.

🔹 Mistrust Between Partners

In some situations, couples may not fully trust each other to leave their estate to the intended beneficiaries. This might happen if there’s concern that the surviving partner could change the will to benefit new relationships, relatives, or others outside the original plan.

🔹 Desire to Protect Specific Beneficiaries

If you wish to protect certain individuals, such as grandchildren, siblings, or even a charity, mutual wills can provide certainty that your chosen beneficiaries will be looked after. You may be concerned that the surviving partner might change their will to exclude someone important after your death.

🔹 Asset Preservation for Future Generations

If there is a significant inheritance or valuable assets you wish to preserve for future generations (such as a family heirloom or real estate), mutual wills could ensure that your wishes are followed without modification after your death.

⚠️ The Risks and Drawbacks of Mutual Wills

While mutual wills offer security and enforceability, they can also present significant risks, especially when circumstances change. Some of the major drawbacks include:

🔹 Lack of Flexibility

One of the most significant downsides of mutual wills is their inflexibility. Once the first partner passes away, the surviving partner is legally bound by the terms of the will. This means that even if the surviving partner’s circumstances change, such as a change in family structure, finances, or health, they cannot alter their will to reflect the new reality.

For instance, if the surviving partner wants to update the will to include a new child or adjust the estate plan due to financial changes (such as a new property purchase), they cannot legally do so.

🔹 Unintended Consequences

The rigidity of mutual wills can also lead to unintended consequences. If, for example, the surviving partner’s financial situation changes, they may be unable to update their will to reflect new priorities. This can create situations where the estate is distributed in a way that no longer aligns with the survivor’s wishes or changing circumstances.

🔹 Legal Disputes

Due to their uncommon nature, mutual wills can sometimes lead to legal disputes. The surviving spouse may attempt to change the will after the first person dies, which could lead to costly and lengthy litigation. Furthermore, if the mutual will agreement is not clearly documented, beneficiaries may have difficulty proving that the mutual will agreement was intended to be binding.

🔹 Proving the Agreement

For mutual wills to be legally enforceable, there must be clear documentation and evidence of the mutual agreement. If this documentation is not properly handled, beneficiaries may struggle to prove the existence of the agreement, which could result in a costly court battle.

⚖️ Case Law Example: Olins v Walters [2009]

In the case of Olins v Walters [2009], the court enforced the terms of a mutual will. In this case, a man had entered into a mutual will agreement with his long-term partner, stipulating that their estate would pass to each other and then to his children. After his death, the surviving partner made a new will in favour of her own relatives, contrary to the mutual agreement.

The court found that the mutual will agreement was enforceable, and the estate was distributed according to the original mutual will. This case demonstrates that mutual wills can be legally binding, but also highlights the potential for costly disputes if the agreement is not clearly documented.

🛑 Should You Make Mutual Wills?

Mutual wills may be appropriate if:

• You have a blended family and wish to ensure your children from a previous relationship inherit

• You fear that your partner may change their will after your death, leaving your beneficiaries unprotected

• You want a binding estate plan that prevents the surviving spouse from altering your wishes after your death

However, mutual wills are not recommended in most cases due to their inflexibility and potential for future complications. In many instances, there are better alternatives that offer the same protection while also allowing for more flexibility. These include:

• Mirror wills with additional protective measures such as a life interest trust for the surviving spouse

• Discretionary trusts that can allow for more flexibility in distributing the estate after the first person’s death

• A deed of mutual agreement that clarifies the intentions of both parties without binding them into an inflexible contract

These options provide the security of mutual wills but are generally more adaptable to changing circumstances.

🤝 How Evalen Law Can Help

At Evalen Law Solicitors, we specialise in will drafting, trusts, and estate planning. If you’re considering mutual wills or unsure about the best option for your family situation, we can guide you through the available choices, explain the pros and cons, and help you make an informed decision.

Our services include:

• Creating wills that reflect your wishes and protect your loved ones

• Providing advice on trusts for blended families or vulnerable beneficiaries

• Minimising the risk of disputes after your death

• Safely storing your wills and ensuring they are updated as your life evolves

📞 Get in Touch

Thinking about making a will with your partner? Wondering whether mutual wills are right for you?

📅 Book a fixed fee consultation today with Evalen Law Solicitors

📧 info@evalenlaw.co.uk  | ☎️ 020 7112 8355