It is often believed that mutual wills and mirror wills are the same thing. However, they are very different legally and should not be confused.
In both cases, they are made by couples who have similar wishes. Usually, they leave everything to each other and then to the children. In this way, the wills “mirror” each other. However, following the first death, it is important to consider whether the survivor can decide not to honour the other’s wishes.
What are Mirror Wills?
“Mirror wills” reflect the contents of another will. Hence, the title “mirror.” Consequently, there are two almost-identical wills that state what happens to the other (and their children) in the event of a death.
The main ways in which they can differ are the name of the testator and any specific funeral requests. The testator is the person who has written the will.
Generally, a couple may wish to create a “mirror will” if they want the following to happen in the event of their passing: If one partner dies, the surviving partner is entitled to the deceased partner’s entire estate (depending on the order of death). When the remaining partner passes away, the estate is passed on to any children.
Instead of getting two separate wills that essentially state the same requests, a mirror will is a more cost-effective option for couples who both want the same things. A mirror will is a good way of making sure your estate remains within your blood-related family.
What are Mutual Wills?
Mutual wills go one step further than mirror wills. They create a legally binding agreement between a couple that the survivor will not change their will.
There might not be written indication of such an agreement, either in the wills or elsewhere. As a consequence, this can complicate things. Nevertheless, if there is clear and convincing evidence of a binding intention between the couple, they will have created mutual wills. In doing so, neither of them is entitled to change their will without the other’s consent.
This principle is at odds because wills in themselves cannot be made irrevocable. For example, should the survivor remarry, the earlier will is automatically revoked.
However, if the first party dies having honoured their side of the agreement, equity comes into play. This imposs a constructive trust over the property to which the agreement relates, on behalf of the agreed beneficiary/ies. The survivor is free to deal with the property during their lifetime, but they cannot give it away.
Legg v Burton
The case of Legg v Burton is an excellent illustration of a situation where the terms of a mutual will were upheld. Mr. and Mrs. Clark made their wills in July 2000, and they mutually agreed to leave everything to the survivor of themselves and then, on the survivor’s death, equally to their two daughters – Ann and Lynn.
At the time of making their wills, Mr. and Mrs. Clark made a verbal promise to each other that they would never change the terms. As the judge in the case heard, they wanted this agreement to be “set in stone.”
Ann and Lynn were with their parents when they made their wills and after the solicitor had left, they questioned their parents about what would happen if either of them changed their mind after the other had died. They were reassured by both parents that this would not happen as they had already made a promise to each other.
The following year, Mr. Clark died. Initially, Mrs. Clark relied heavily on her daughters. But after a while, changing circumstances meant that Mrs. Clark relied increasingly more on her grandsons and the partner of one of them.
As a result, in the years following her husband’s death, Mrs. Clark made 13 new wills – each progressively leaving more of her estate to her grandsons and the partner, and less to Ann and Lynn.
When Mrs. Clark died in 2016, her will left only small cash gifts to her daughters. Ann and Lynn claimed that the will made in July 2000 should be upheld.
At trial, the judge found that the verbal promise made between Mr. and Mrs. Clark in July 2000 had created a legally binding agreement, mutual wills. As a result, it rendered invalid all of the subsequent wills made by Mrs. Clark.
Caution Required
When a couple makes their wills, binding each other may seem like a good idea. But there are circumstances where it may be beneficial for the survivor to have the flexibility to make changes.
People are generally not good at reviewing their wills, even following major life events or significant changes in circumstances. Understandably, we do not like to dwell on our mortality, and after we have taken the effort to make our will, there is a tendency to think it has been done and can be forgotten about.
When people review their wills, both parties may agree that it is a good idea to change the terms. This is often many years after creating them. However, the agreement binds the survivor once one of them dies, and the opportunity to change is lost.
You should always take advice before seeking to create mutual wills. It may well be that there is another legal mechanism to achieve the same or a similar result to the one you are both seeking while still allowing the survivor the flexibility to change their will to adjust to new circumstances.
We can come to you, in the privacy and convenience of your own home, to discuss wills, trusts and lasting powers of attorney. We will explain why they are important and suggest ways that you can put steps in place to give you peace of mind for the future.
You can carry out your wishes by drafting a will, lasting powers of attorney or setting up trusts. Additionally, you can also protect your family and friends from costly and stressful legal disputes. Please contact us to discuss wills, trusts, LPAs or any of our services.