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12. Standard Mutual Will




Writing a Mutual Will

Standard Mutual Will to each other then to children

Making a mutual will is the only way that you can be confident that your wishes will be carried our when you are no longer here. When you have a will you can be confident that your loved ones will be provided for how you intended without leaving them with unnecessary problems or concerns. We understand that writing a will can often be a difficult task and it can never seem like the right time. It is only normal putting off writing a will however, our helpful, friendly and supportive team can help you with some of the difficult and challenging decisions arising out of writing a will. We make it our mission to find out what is important to you and will guide you through the process making sure that making a Will is as simple and straightforward as possible.

What is a mutual Will?

In simple terms, mutual Wills are an agreement, generally between two individuals, to make their Wills at the same time on agreed terms with a legally binding obligation that the Wills shall not be altered after the death of the first party. It is nothing more than a contractual agreement throughout the lives of two parties.

However, once one party to the agreement has died, having carried out his part of the agreement (i.e. dying with the mutual Will as his/her last Will), the surviving party is similarly bound by the agreement.

If the survivor subsequently makes a new Will contrary to the mutual Will previously agreed, the law of equity (i.e. the law of what is right and fair) imposes a “constructive trust” over their estate upon their death, so as to ensure the terms of the original mutual Will are ultimately upheld.

The pros of having a mutual Will

Mutual Wills are drafted in terms agreed by both parties making the Wills. Because of this, they seem like a perfectively valid and suitable way to for clients who want to bind from beyond the grave i.e. to stop someone changing the Will in the future.

If both parties to the mutual Wills are still alive and have testamentary capacity, they are flexible. In that instance, the parties can go ahead and prepare new Wills, either new mutual Wills or new normal Wills! 

The cons of having a mutual Will

The problems with mutual Wills tend not to arise on the death of the first party (who typically leaves everything outright to the surviving party). It is upon the death of the surviving party that the dispute typically begins, particularly if there has been a length of time between the two deaths and circumstances have changed i.e., new wealth has been accrued, a new relationship has been entered into, perhaps even new children have been born or adopted.

A raft of queries then arises such as:

  • Did the two individuals thoroughly understand the binding nature of the mutual Wills when they made then? Was it really explained to them by the solicitor?
  • What assets did they really intend to be covered? Everything they owned together at the time of their mutual Wills, or everything forever? Including any windfalls/unexpected windfalls between first death and second death.
  • What happens if the surviving party went onto to have new dependents i.e., perhaps they got married again or had more children? Are they not entitled to benefit?

Mutual Wills can therefore commonly lead to disputes down the line. Parties often also forget they did a mutual Will.