It is important to appreciate that so long as an individual has testamentary capacity they will always be able to change their Wills. This is irrespective of whether the Will is classified as a “Mirror Will” or a “Mutual Will”. However, on occasions, it would be appropriate for parties to enter into Mutual Wills, the meaning of which is explained hereafter. The circumstances where perhaps Mutual Wills would normally be entered into would be in respect of second marriages where there are children for each party from the first marriage or unmarried couples involved in a long term relationship.
A Mutual Will clause records an agreement reached between two people who then execute identical Wills. Ordinarily, provision will be made for the first deceased’s estate (D1) to pass in its entirety to the survivor (D2) , and then, on the D2’s death, the estate would then be divided in a way that normally would involve members of the D1’s family plus D2’s family . The Mutual Will clause can, therefore, be seen as a contractual agreement between the parties not to change their Wills after the first death.
If, while both parties are still alive, say D1 was to renege on the agreement, and execute a new Will, then provided D2 has both testamentary capacity and awareness of the change, then upon D1’s death , D2 still has the ability to change their Will and there is no consequence on D1’s death. Should D2 fail to address the question of their own Will , then so be it.
If, however, say D2 is the surviving party and has secretly changed their Will during D1’s life but without disclosing that fact or, alternatively, as the survivor D2 changes their Will after D1’s death, thereby denying certain beneficiaries their entitlement if the agreement had stood, then on D2’s death, those beneficiaries who have “missed out” can then bring proceedings against D2’s estate under principles of equity and contract ,arguing that there is a breach of agreement/contract, the consequences of which is that they have been denied their anticipated entitlement.
Accordingly, it is important to appreciate that should, during your joint lives, you decide to change your Will, it would be important for that decision to be communicated to the other party.
Similarly, it is important to appreciate that if either one of you should remarry after the death of the first of you then such remarriage would have the effect of revoking your existing Wills and, therefore, it would be important that even despite the remarriage you execute a new Will reflecting the terms of the original agreement to ensure that the terms of this original agreement are reinstated to avoid the possibility that on the survivor’s death litigation may result.
For more information on mutual and mirror wills or wills in general then please do not hesitate to contact the private client specialist team at Larcomes on 023 9244 8100.