When does a ‘mirror Will’ become a ‘mutual Will’?

When it comes to estate planning, ‘mirror Wills’ are fairly common between spouses. However, they shouldn’t be confused with ‘mutual Wills’, which are significantly different and often more complex — opening the door to various kinds of legal disputes.

Here, Beth Middleton and Lauren Ainsworth from our Will and inheritance disputes team explain the difference between mirror Wills and mutual Wills and briefly outline how any disputes may be dealt with.

What’s a mirror Will?

Mirror Wills are separate Wills made by two individuals (often spouses or partners) that are structured in similar terms. 

Typically, they state that each person leaves their estate to the other spouse or partner and go on to make similar provisions for any children or other beneficiaries in the event that the spouse or partner dies first. 

Importantly, either party can change or revoke their Will independently at any time (without needing consent from the other).

What’s a mutual Will?

Mutual Wills are where two or more individuals make a binding agreement on how their estates will be handled upon their respective deaths. 

The effect of this is that the surviving party isn’t free to make changes to their Will that would affect the assets subject to the earlier mutual Wills. Mutual Wills create a trust. This means that the surviving party must ensure the property passes in accordance with the provisions of the mutual Wills following the second death.

A new Will can be made and validly appoint different executors, which will apply to any newly acquired assets. However, its provisions will not apply to the assets that were held by the testator and subject to the provisions of the earlier mutual Will.

Mutual Wills can be useful in the context of ‘blended’ families, where each parent requires some reassurance that their respective children will be provided for on the death of the second spouse. However, they can be exceptionally difficult to ‘unpick’ after death. As such, they can lead to expensive disputes.

Formalities of mutual Wills

There’s no requirement for a testator to make it clear within the Will that it’s intended to be a mutual Will. Instead, a Will can be construed as a mutual Will if there’s evidence that the testators agreed that both Wills would be irrevocable and mutually binding on each other. Such evidence could take the form of solicitors’ file notes or contemporaneous evidence from family members and friends.

Mutual Will disputes and litigation

In the absence of any 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 these circumstances, the intention and conduct of the testator must be considered.

In the case of Charles and others v Fraser [2010] EWHC Civ 2154 (Ch), two sisters executed Wills — which were described as mirror Wills — that appointed each other as the sole executor and beneficiary of the estate. On the second death, the combined estate was to pass to the same beneficiaries. 

Some years later, one sister went on to execute two further Wills that slightly varied the distribution of the estate on the second death. The beneficiaries of the original Will argued that the Will was a mutual Will and therefore couldn’t be changed. 

The Court concluded that the mirror Wills were mutual Wills, having considered that:

• The sisters made mutual promises to each other regarding the distribution of their respective estates and it was an explicit or implicit part of those promises that the Wills wouldn’t be altered.
• Each sister was conscious that part of the survivor’s estate would come from the other’s family and should (in fairness) be shared with that family.
• The witness evidence from the beneficiaries was consistent insofar that it suggested the sisters had agreed not to change the Wills.
• The sisters referred to both Wills as “the Will”, rather than separate, individual Wills, which suggests that the Wills went beyond mirror Wills. 

The case of McLean v McLean & Ors [2023] EWCH 1735 concerned a husband and wife who made Wills that appointed each other as sole executors and beneficiaries, with provisions for their respective children to inherit equally on the second death. Within the solicitor’s file note, it was recorded that Mr McLean trusted his wife implicitly not to change her Will. 

The Court found that “trust” wasn’t enough to create a legally binding contract not to revoke. Instead, this constituted a moral obligation to each other. While it was clear that there was a common intention between husband and wife to provide for their children, this wasn’t enough to give rise to a mutual Will.

Unclear intentions and evidential burden

Both mirror Wills and mutual Wills serve important roles in estate planning. The law is complex and disputes often arise where a testator’s intentions aren’t clear.

The evidential burden rests with the person who intends to claim that the Wills are mutual and this must be discharged on the balance of probabilities. While it can be difficult to obtain evidence after the testator has died if sufficient records haven’t been kept, evidence from family members and friends can be extremely useful to establish the facts. 

Talk to us

We know that dealing with inheritance and probate can be complicated. If you’re facing a dispute relating to the death of a loved one, their estate or their assets, it can prove extremely difficult to navigate alone.

Our solicitors are experts in resolving disputes that relate to Wills, inheritance, estates and trusts.

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.