Although they sound similar there are very significant differences between these types of Will. In particular there are very serious implications if a Will has been drafted that is subsequently interpreted by the Court as a mutual Will.
As such it is always important to be very careful that the Will being drafted cannot be interpreted as a mutual Will if there is no intention to create an obligation on a surviving testator in respect of how they can leave their estate.
Mutual Will
A mutual Will is created where the individuals make a binding agreement on how their estates will be dealt with upon their respective deaths. Most often this will be couples but it is not restricted to them.
The effect of this is fundamental. It means the surviving party is no longer free to make changes to their Will that would affect the assets which are dealt with under the mutual Will. It means that the surviving individual must ensure the property passes in accordance with the provisions of the mutual Will following their death.
It is possible for the surviving individual to make a subsequent Will but it should only apply to newly acquired assets. The new Will should not apply to the assets that were held by the testator and subject to the provisions of the earlier mutual Will. There are no requirements for testators to make it clear within the Will that it is intended to be a mutual Will. Rather the Court will look at evidence to see whether the testators agreed that both Wills would be irrevocable and mutually binding on each other. As such the parties need to be careful making their position quite clear when drafting the Wills which they might have thought would be considered mirror Wills but are subsequently interpreted as mutual.
In the absence of an express provision within the Will, disputes can arise as to whether or not a Will is intended to be a mutual Will or a mirror Will. In the circumstances the intention and conduct of the testator will be looked into.
Unclear intentions will create potential difficulties. The burden which, is based on the balance of probabilities, lies with the individual who seeks to claim the Wills are mutual. It can be difficult to obtain evidence after the testator has died if sufficient records have not been kept, evidence can come from family members, friends and the Will files themselves.
Mirror Wills
These are Wills made by two individuals which are structured in similar terms. Often the couple will choose to enter into separate Wills on this basis.
They will often each leave their estate to the other and then go on to make similar provisions for any children or other beneficiaries in the event that their partner/spouse has died first.
The fundamental difference between this type of Will and a mutual Will is that there is no obligation on the surviving individual to treat the assets set out within the Will on the basis as provided for in that document. They are totally at liberty to draft another Will in the future dealing with all of the assets that might previously have been set out in the previous mirror Will and even as they wish.
It is always good practice if drafting a mirror Will to make sure that it is clear within the document that it is the intention of the individual that this is a mirror Will and not a mutual Will.
If you have any question or would like to discuss drafting a Will please contact our Wills Trusts and Probate team at info@brethertons.co.uk or call 01295 270999 (Banbury Office), 01869 252161(Bicester Office), 01788 579579(Rugby Office),or 01242 472747 (Cheltenham)