To Bind or Not to Bind? – Pitfalls of Mutual Wills and How They Differ from Mirror Wills
Mutual Wills are a type of Will, often called a ‘Mutually Binding’ or a ‘Mutually Irrevocable’ Will, for many reasons, but they are not to be confused with Mirror Wills, there is a big difference!
Mirror Wills are a very common way of drafting Wills between couples, and this is usually due to their simplicity. Many couples choose to leave everything to each other in the event of the first of them to die, and in the event of the second of them dying, they choose to leave everything to children or grandchildren. However, things may become more complicated where couples are in second marriages or have children separately to each other. For example, they may wish to leave assets or gifts to different people in order to provide for children from a previous relationship.
In such circumstances, couples may wish to ensure that their separate children are provided for by the survivor of them. In situations where such children may be estranged or where an argument or fall out is foreseeable, this is where discussions about Mutual Wills appear more relevant.
Mutual Wills are essentially an agreement between the people who make them, often couples, to not change their Wills in the future without the others consent. This means that if one person dies, the other is unable to change their Will at any point in the future and they are bound by the terms made previously. Where two people have not made Mutual Wills, either of them would usually be free to change their Wills, so long as they have the required mental capacity, at any point in order to suit a change in their circumstances. This could be a fall out with family members or a family member passing away for example.
Real Life Scenario
In a case previously dealt with by my colleague, a woman was bound by a previous Will made with her ex-husband. Usually, marriage revokes a Will, but as she had made Mutual Wills with her ex-husband, when she remarried in her 60s and made a Will with her new husband, forgetting about the binding element of her previous Will, this was open to contention when she passed away. As a result, her new husband, believing that he would receive the property in accordance with their Mirror Wills faced claims against the estate from his late wife’s previous stepchildren and subsequently lost the property he had lived in, together with assets that he had contributed towards. The case proved that regardless of the change in circumstances during her lifetime, her Mutual Will was binding and took precedent over such changes. Unfortunately, as a result, her new husband was left widowed and in rented accommodation, through no fault of his own.
Mutual Wills may benefit those wishing to protect assets for their intended beneficiaries. However, as demonstrated above, there are many pitfalls to this way of drafting. For example:
- Many couples may forget that they have made Mutual Wills or may not fully understand that the terms that they have entered into are binding upon them in the future. This, as can be seen by the above case study, may lead them into making future Wills to provide for new intended beneficiaries. However, any further Wills would not be valid, and the estate would pass by the terms of the Mutual Will previously made.
- During our lifetime we all experience many changes to our circumstances and unfortunately, many of us experience loss. Is it fair that you would be unable to change the Will in the future to reflect this, or reflect the death of a main beneficiary?
- What if you experience family members losing mental capacity or being unable to care for themselves? If you were to leave them significant funds or assets, these family members may be unable to manage these funds themselves and may be overwhelmed by this, or alternatively the funds may be used to pay for care, which may not be your intentions. Would you want to be able to change your Will in this situation?
- You can draft your Will based on Inheritance Tax rules and utilize the rules to mitigate against the payment of Inheritance Tax. But what if the laws on Inheritance Tax change? It is important that you review your Will every 3-5 years, and you may wish to amend your Will to make provision for any changes. However, if you have entered into a Mutual Will with a partner who passes away, you will no longer be able to change your Will to reflect changes in the law that may have occurred. This may ultimately result in increased payment of Inheritance Tax upon your death.
- If beneficiaries of the Mutual Will are aware of the binding promise their parents, for example, have made, contention may arise in the future where further Wills have been made or new relationships have been entered into. This can cause many arguments between family members, but also potentially large legal fees that may have to be met by the estate and the assets or funds you wish to pass on.
You may think that so long as couples understand the binding promise they are entering into, there will be no issue, and this may be true. However, it is worth couples considering the alternative ways to draft their Wills to achieve the desired result in situations where they have slightly different intended beneficiaries. For example, when speaking with a solicitor they could explore the options of Life Interest Trusts and Right of Occupation Wills. These types of Will are more flexible and may also provide for the protection against care fees.
Our Wills & Probate solicitors at Ridley & Hall are experienced at dealing with such circumstances and will be able to help you to express your wishes in the best way to reflect your circumstances. Please contact us on our freephone 0800 8 60 62 65 to speak with a friendly member of our Wills & Probate Team, who will be happy to assist you in exploring your options.