The Pros and Cons of Mutual Wills in England and Wales
In the 22 years of my career so far, I have come across just ONE pair of Mutual Wills, which were causing some distress to the surviving partner. He had no idea what they were or the restrictions they imposed or indeed why they had them. Most couples have what are called mirror Wills.
What is the difference between Mirror Wills and Mutual Wills?
Mirror Wills allow the survivor to change and adapt their Will to their new circumstances and perhaps even a new partner.Mutual Wills are a straightjacket, fixing the Will at the point of death of the first partner. No matter how their circumstances change, they are prevented – for example – from giving significant gifts, from changing the Will in any way. This can have serious tax consequences, as well as cause immense frustration to the survivor, who may wish to do things that the deceased partner would have approved of, but the Mutual Will legally prevents it. I can see why the idea might be attractive but the consequences are unforseen.I can quite see why Mutual Wills sound attractive – until someone dies, and their life is restricted to a significant degree. For example, they cannot provide an inheritance for a child unborne or adopted after the first death. They can’t provide any form of security for a new partner. A business couldn’t be sold. The executor can’t be changed, neither can any of the beneficiaries. You can’t add a disabled persons trust to assist – for example – a new grandchild, or a family member who has a serious illness or accident.
How About Partially Mutual Wills?
What would make perfect sense would be for some part of the estate to be subject to a mutual clause – say shares in a family firm could only be disposed of in a certain way, say to family members? Family jewellery could be prevented from being sold outside the family. Same with the family castle. Just a thought! Comments from lawyers welcome!
Setting up Mutual Wills.
No solicitor or professional Will writer should implement Mutual Wills without ensuring that both parties have a full understanding of the restrictions placed upon the survivor who can no longer adapt their Will to deal with new circumstances, taxes or beneficiaries.I can see advantages where the Mutual element is restricted to specific assets – for example, shares in a family business, but making the whole estate subject to Mutual enforcement is perhaps going a bit far and can be a straitjacket to the survivor who no longer has much flexibility.
Introduction: In England and Wales, Mutual Wills are a legal arrangement occasionally utilised by couples or families to ensure their assets are distributed according to their agreed-upon wishes. While Mutual Wills offer several advantages, they also come with potential drawbacks that individuals should carefully consider before making this binding commitment. This article explores the advantages and disadvantages of Mutual Wills, shedding light on the complexities involved in this legal arrangement.
Advantages of Mutual Wills:
- Joint Expression of Intent: One of the significant advantages of Mutual Wills is that they allow couples to express and enforce their shared intentions regarding the distribution of their assets after both parties have passed away. This agreement provides peace of mind, ensuring that their assets Will be handled as per their Mutually agreed-upon plan.
- Protecting the Survivor: Mutual Wills often include provisions to safeguard the interests of the surviving partner. For example, a Mutual Will may specify that upon the death of one partner, their assets pass to the surviving partner, providing financial security and ensuring that the surviving spouse can maintain their lifestyle.
- Maintaining Control over Asset Distribution: By creating Mutual Wills, individuals can exert control over the allocation of their assets even after their death. This arrangement allows couples to determine how their property Will be distributed among children, grandchildren, or other beneficiaries, ensuring that their wishes are honoured.
- Preventing Disputes: Mutual Wills can help avoid potential family disputes. Since both partners agree to the terms of the Will, it becomes more difficult for surviving family members to contest or challenge the distribution of assets. This can lead to greater harmony and reduce the likelihood of lengthy and costly legal battles.
Disadvantages of Mutual Wills:
1. Lack of Flexibility: One significant disadvantage of Mutual Wills is their inflexibility. Once the Will is established, it becomes challenging to make changes or modifications to the distribution plan, even if circumstances change over time. This lack of flexibility can limit the adaptability of the Will to account for unforeseen events, such as new family members or changes in financial circumstances.2. Potential Loss of Control: While Mutual Wills provide the testators with control over their assets, they also mean relinquishing control over the disposition of those assets after the death of the surviving partner. This loss of control can be problematic if the surviving partner remarries or has a change of heart regarding the original distribution plan, potentially leaving beneficiaries at a disadvantage.3. Complexity and Cost: Mutual Wills can be complex legal documents that require the involvement of solicitors to ensure accuracy and compliance with legal requirements. Seeking legal advice and drafting a Mutual Will can incur additional costs compared to individual Wills. Additionally, the surviving partner may face expenses and legal obligations when implementing the provisions of the Mutual Will after the death of the first partner.4. Potential Revocation Challenges: Mutual Wills can be difficult to revoke. If both partners agree to revoke or modify the Mutual Will, it requires careful legal consideration and documentation. In the absence of Mutual consent, revoking a Mutual Will can become complicated, potentially causing unintended consequences or disputes.5. Any Attempt to dispose of matters covered by Mutuality: may crystallise the trust and effective pass ownership by mistake,6. Lack of Specific Items: if the Mutual Will is allowed to extend to all assets, it may be unduly restrictive. The only example I have ever seen covered all assets.
Conclusion: There are clearly good reasons for the almost total lack of Mutual Wills being written. There are circumstances in which they could be valuable, but they should be used with extreme care with a through written explanation of their effect to which both testators agree.While Mutual Wills offer advantages such as joint expression of intent, protecting the survivor, and maintaining control over asset distribution, they also have drawbacks such as inflexibility, potential loss of control, complexity, and revocation challenges. It is crucial for individuals considering Mutual Wills in England and Wales to weigh these advantages and disadvantages, consult legal professionals, and carefully assess their specific circumstances before making this binding commitment.As ever on this site, this is not legal advice, just a warning that this particular type of Will has very restrictive properties and should only be used under professional guidance with a complete written explanation.It is not always impossible to deal with the issues raised, so feel free to pop the details in the form below, and we will pass them on to a suitable firm (and they are rare) for an initial free chat to see if the matter may be worth pursuing.Error: Contact form not found.
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