Mutual Wills – can the survivor change his/her Will?

The author has written several articles on the subject of “Mutual Wills” in this paper over the
years. These are slightly different from “Mirror Wills” that are often spoken about. The main
difference is that, in Mutual Wills, there is an agreement that the survivor will not change his/her Will. In Mirror Wills the parties trust each other to “do the right thing”.

Doing the “right thing” is easy when the parties have only been married to each other and there are no other children than their own. They have all grown up together and have shared the costs of holidays and house purchase as a common venture and have jointly created their savings.

But in these days there is much more “recycling” of spouses, sometime with marriage, or sometimes living as unmarried partners. Children and step children are often involved. The underlying problem is that neither of the partners to the first marriage wants to see their estate disappearing after their death down a completely different lineage.

This problem can be cured by having an agreement that neither Will will be changed after the first death. Of course before that death the Wills are just Wills, and can be freely changed. On death, however, a trust comes into existence, and the survivor will be in breach of trust if he/she alters the Will. Irrelevant sections of the Will can be changed such as a £1,000 legacy to the Cats’ home can be changed to the Dogs’ home – because no one in the family is affected.

In addition, after-acquired property, such as when the survivor wins the lottery, can be dealt with however the survivor likes.

But one thorny issue remains:- what sort of agreement must be used or proven. Until recently this needed to be a written document, but the recent High Court case: Legg v Burton (2017) was successfully brought on the strength of a simply oral, verbal agreement. The husband died in 2001 and he wife survived 15 years. During that period relations in the family deteriorated and the wife changed her Will to miss out her daughter and leave the estate to her granddaughters. There was evidence that the acting solicitor attended them at their home and explained that the Wills were irrevocable. Whilst not strictly accurate this was adequate evidence that there was mutuality.

For further advice about Mutual Wills contact John Pulham at:-
Messrs Pulham & Co
Egmere House,
Market Place,
Saxmundham,
IP17 1AG
Telephone (01728) 602084 or e-mail jsp@pulham.co.uk