Mutual Wills – Slight Return

This week the posts have related to Mutual wills – which we have discussed before – A Mutual Will occurs where two (or more) people agree to dispose of their estate in a certain way and execute their Wills accordingly. It recognizes the mutuality of obligations of the Will makers who make certain provisions in their will in return for provisions made by the other(s).

The origin of mutual Wills dates back over 250 years.  Camilla Ranc had been left, a, ‘considerable personal estate’ under the will of her aunt, and  wished to ensure an appropriate scheme of distribution for her children.  Camilla and her husband  René created a joint will that they described as their mutual testament. The joint Will provided that the surviving spouse would take a life interest in each other’s property and the remainder was kept on trust to be distributed to their children upon the death of the survivor. The wife survived her husband and wished to leave her property contrary to the mutual will. The Court held that the Mutual Will

“Is a contract between the parties, which cannot be rescinded, but by the consent of both. The first that dies, carries his part of the contract into execution. Will the Court afterwards permit the other to break the contract? Certainly not”

Essentially a mutual Will has three elements:

• there is an agreement or contract and its terms as to the binding disposition of property;
• one of the parties survives without revoking his or her will;
• and, the trust is imposed.

Mutual wills are often made between husband and wife, often in second or subsequent marriages and usually where one or both have children from earlier relationships.

 The benefit of a Mutual Will is that it provided a mechanism for preserving property brought into a marriage for the benefit of selected recipients — usually children of prior relationships — while providing rights of enjoyment during the survivor’s lifetime.

‘Joint wills’ and ‘mirror wills’, are different from Mutual Wills however if there is a specific agreement for the distribution of property set out in the Wills, for instance that they are not to be revoked they may also be mutual Wills.

‘Joint wills’ are wills made by two or more people that are jointly executed and expressed in one document. As each of the joint Will makers dies, the will (or the relevant part of it) is admitted to probate, as their individual will.

As the name suggests ‘Mirror wills’ contain reciprocal terms that mirror each other. As discussed above mirror provisions may suggest a mutual will, but are not enough in themselves to make the wills mutual.