Mirror wills v mutual wills – to bind or not to bind?
Solicitors welcome individuals who require mirror wills with their partner. As the name suggests, terms of mirror wills are identical but in reverse. Such wills usually make provision for everything to pass to the surviving partner. On the second death, the entire estate tends to pass to a third party, commonly their children.
Mirror wills do not prohibit the survivor from changing their will after the death of their partner.
Mutual wills also contain mirroring terms. Conversely, these do not permit couples to change their will after the first death. Mutual wills are intended to be irrevocable and are binding on the surviving partner.
Some solicitors simply avoid mutual wills altogether, suggesting alternate methods of achieving a similar outcome.
Recent case – striking down subsequent wills
A recent English case highlighted the binding nature of mutual wills and served as a reminder that wills must be drafted with precision.
In this case, thirteen wills made by the late June Clark between 2004 and her death in 2016 were ruled invalid. A will she executed in July 2000 in unison with her late husband was a mutual will and bound her estate.
Mrs Clark had two daughters who challenged the final will she prepared in December 2014. This left them legacies of £10,000 and £30,000 respectively, with the residue going to numerous other beneficiaries. Probate was granted in England by one of Mrs Clark’s grandsons, Aaron, acting as executor.
It was not in dispute that Mrs Clark and her late husband made mirror wills in July 2000, with the residue passing to each other whom failing their daughters. Consequently, when Mr Clark died in May 2001, his entire estate passed to Mrs Clark.
Aaron became the principal defendant in the dispute when the post-2000 wills were challenged by Mrs Clark’s daughters. They claimed that the 2000 will which left everything equally to them was a mutual will so irrevocable.
Aaron challenged the mutual will claim as the wills advised that the trustees should make over the residue to the survivor “absolutely and beneficially and without any sort of trust or obligation”. Aaron’s position was that this clearly distinguished the 2000 wills from mutual wills.
However, the presiding judge held that Mr and Mrs Clark had “expressly promised each other that having made their wills in the form they had they would not revoke them, and thereby engaged the principle of mutual wills”. Judgment was granted in favour of the daughters who shared the £324,000 estate.
Conflicted changes
Relating this back to Scots law, there is freedom of testation i.e. individuals can leave their estate as they feel fit subject to certain rules regarding legal rights. Solicitors should be wary of changing the terms of a mirror will for one partner after having created mirror wills for the couple. A conflict of interest could arise where a solicitor has been approached by a client who wishes to change the terms of their mirror will, unbeknown to their partner.
Mutual will alternatives
Couples can leave each other a liferent of their estate with the fee to a third party. This would allow income to be paid to the survivor and trustees would have power to advance capital. This is arguably a safer solution.
Contact Murray Beith Murray's Wills Solicitors, Edinburgh
Tailored advice should be sought if you are considering preparing a will. We would be delighted to assist. For expert legal advice on these issues, or other issues relating to wills, please contact us today.