Mutual wills: What are they and are they a good idea?
You may have heard of the terms “mirror wills” and “mutual wills” before, but do you know the difference?
A mirror will is a very common arrangement when making wills. These wills are usually made by couples who leave everything to each other, and then on the second death, to the same beneficiaries as each other. Flexible and straightforward to update, you can create a mirror will easily.
A mutual will on the other hand, is a much more complex and problematic arrangement.
What is a mutual will?
Mutual wills are also usually made by a couple and often contain similar terms to each other. However, these wills cannot be changed once the first person in the couple passes away.
On the first death, there is a binding contract not to change the will of the survivor. This provides security that the terms agreed when the wills were made will be carried out. Mutual wills are ideal for couples who have blended families and who wants to ensure that the children of both families are protected.
Problems arising from mutual wills
They are irrevocable
Mutual wills cannot be changed or updated after the death of the first partner. This leads to complications where the surviving partner’s circumstances change after the first death. Common life events which cause complications include remarriage, birth of another child or grandchild, or changes in financial circumstances.
Lack of flexibility
Because the wills are irrevocable, mutual wills cannot adapt to changing circumstances, unlike the flexibility that mirror wills afford.
Wording of intentions can be unclear
Because of the complex way in which mutual wills are drafted, your intentions may be interpreted differently by different people. It is important to establish in detail exactly why you are wanting to make mutual wills, and how you want this to affect your partner.
Trust issues and conflict with your partner
Remember that mutual wills bind your partner to carry out your wishes after your death, regardless of how their situation may change after you die. You may experience conflict and issues in trusting one another, which could be avoided by creating a different type of will.
They are more expensive than mirror wills
There are numerous risks and problems which can present themselves. Therefore, drafting mutual wills is much more expensive than drafting mirror wills. As well as protecting you and your partner, a legal professional will also need to protect themselves from any conflict which may arise after your death.
What other options do I have?
The most common alternative to a mutual will is to make a will including a trust in favour of your partner and your family.
This could be a life interest trust, which gives your partner the right to live in and benefit from your home (and sometimes other assets too). Alternatively, you can create a discretionary trust where the trustees named in your will give money and assets to your beneficiaries at their discretion.
These types of will are much more flexible, so that you can ensure your family is protected. You can also update your wills in the future.
Why seeking legal advice on mutual wills is important
Due to their complexities, legal professionals almost always advise against making mutual wills. If you wish to make a will with your partner, discuss whether you want the wills to be irrevocable. Irrevocable means that you cannot change your will after an event, such as the death of the first partner.
A legal professional will help you explore alternatives such as a mirror will containing a trust. You can make a will to meet your specific needs and family arrangements.