Mutual Wills can wreak havoc on a family!
Surprisingly there are different types of Will which can be written for you. The simplest is a single Will – as it suggests this is a Will for you and you alone, and details where you would want your worldly goods to go to should you die.
The most common type of Wills for couples are known as mirror Wills. As an example, let’s look at a typical husband / wife and three children arrangement. The basic idea of these is that if the husband were to die first, then if his wife survives him, he would usually write the Will so it leaves his entire estate to her.
And when his wife subsequently dies, her Will leaves all that she gained from her deceased husband and her own assets to the three children in equal shares. But, if her husband had died before her, then it is the children who inherit.
Of course the Wills are written to work if the wife dies first. Her Will would state that if her husband survives then she leaves her assets to him, but if he has already died then her assets pass to the children.
However, there is a risk with these mirror Wills. Again, let’s say the husband dies first and leaves his assets to his wife. However, in the fullness of time she falls out with her children and decides instead to re-write her Will. There is absolutely nothing to prevent her from doing this – she could leave her estate to grandchildren only, or to anyone else for that matter.
What’s happened here? Notice that although the husband wants to make sure his wife is provided for should he die, his real expectation is that when his wife dies that at least his own assets do pass to their children. But because the wife has changed her Will after his death, in effect his intentions have been ignored.
Mutual Wills, on the other hand, are written in such a way that both the husband and wife agree that one one of them dies, the survivor will not under any circumstances re-write their Will. This then binds the survivor to ensure on their death that it is the children only who benefit. Sounds like a great idea! Why not use mutual Wills which provide certainty of what will happen when both husband and wife have died, instead of what seem to be risky mirror Wills?
What if the reason the wife has fallen out with the children because they have been abusive to her? What if she has a new relationship and her new partner needs finances should she die? In these, and many other circumstances, the wife is absolutely bound to retain the terms of the mutual Will and cannot be changed. Think of mutual Wills as a binding contract on whoever survives.
A new case has backed this principle up – for law aficionados, the case name is Legg and others v Burton and others Here, husband and wife had set up mutual Wills in a similar way too the example above. Again it appears mum had decided to write a new Will, leaving her estate to grandchildren. On her death, her daughters challenged that latest Will and relied on the previous mutual Will, which stated that both husband and wife had agreed that when one had died that the survivor would not update their Will to do something different.
Clearly it was in the interests of the daughters to get the court to enforce the mutual Will rather than the later Will which had excluded them from inheriting. And the court did indeed side with them.
So, the learnings? Be very careful with mutual Wills. While they sound great when both of you are alive, there are many unforeseen circumstances where binding the survivor of the two of you to not change their Will can be extremely problematic.
Goodness knows what the court costs have been in resolving this dispute, but it is my guess that the grandchildren have inherited less. Grandma’s estate would have had to pay solicitor, barristers and court fees, or their own parents would have to pay. Either way, there were no real winners here.
So, in summary, mirror Wills do give far more flexibility for the survivor to react to changing family circumstances. Mutual Wills do give certainty but can be dangerous.