Private Client expert, Louise Wilson looks at the purpose of a mutual Will and some of the disadvantages associated with this type of Will.
What is a Mutual Will
Mutual Wills are Wills drawn up by at least two people (Testators) following an agreement that during their lifetime they will not change their Wills without the consent of the others. On the death of one of the Testators, the remaining Testators can not alter their Wills. For Mutual Wills to be binding there must be an agreement made between the Testators. For the agreement to be legally binding the testators must agree not to revoke the Wills and then make the Wills in light of the agreements made.
Mutual Wills differ to other types of Wills, such as Mirror Wills. With Mirror Wills each Will is an entirely independent legal document, even though they are intended to reflect or compliment each other. Each person is however, free at any point to amend and/or revoke their Will as there is no agreement underpinning the Wills.
It is vital to make it clear within the Will whether it is a Mutual or Mirror Will and this can be achieved by including a specific clause in the Will to clearly state what type of Will it is. The law requires clear evidence that the Testators actually agreed that the Wills would be mutually binding. However, the agreement does not have to be in writing as shown in the case of Charles and Others v Fraser 2010, in which two sisters were held to have made mutual Wills even though there was no written agreement. They had expressed their intentions and wishes orally to various family members, which was deemed to be sufficient for the two Wills to be considered Mutual Wills.
What happens when one of the testator dies?
When the first Testator dies, the remaining Testators are bound by the terms of the Wills made together and the assets of the estate are held on what is known as a” constructive trust”, thus preventing the survivors from disposing of the assets differently. They cannot change their Wills and if they do so, the Executors of the new Will hold the assets on a constructive trust for the beneficiaries specified within the Mutual Will. Equally, during the lifetime of the surviving Testators, they are limited as to what they can do with the assets, if assets are disposed of to defeat the purpose of the agreement.
However, what if assets are not disposed of to defeat the purpose of the agreement but rather because of the needs of the Testator? For example, what happens should a surviving Testator need care and have to pay care fees? A Local authority will consider all their assets in assessing their capital means and this will include any assets inherited from the first Testator. Hence, the asset value could be seriously depleted if used to pay for those care fees. Whilst it may be possible to evidence the Mutual Will being in place, it is not clear whether a Local Authority is restricted from considering the assets as capital available for the surviving Testator. In any situation, it will be difficult and expensive for the constructive trust beneficiaries to chase their inheritance, but it will be especially hard when funds have been used in this way, if not impossible.
What are the disavantages of Mutual Wills?
There are clearly disadvantages of using Mutual Wills.
- They are not flexible, in the sense of allowing a surviving Testator to undertake reasonable and necessary lifetime planning to take into account changes to Inheritance Tax laws between the time of the death of the first and second Testator.
- If the Mutual Will still gives the estate to the second Testator absolutely, and, as indicated above, the surviving Testator needs care, the assets are put at risk of being used to pay for such care.
- Whilst in the case of Charles and Others v Fraser 2010 the court were able to determine that there was an agreement underpinning the terms of the Wills, it is very difficult to prove a common intention agreement between the Testators if it is not clearly written down and signed by them all.
- If the time between the deaths of the Testators to the Mutual Will agreement is long, it may be difficult to establish the extent of the assets under the Mutual Will constructive trust and to establish the extent to which the survivor is free to deal with the inherited assets.
Are there better ways of preserving assets for future beneficiaries?
The main reason why individuals may want to make a mutual Will is to preserve assets for specific future beneficiaries. However, there are better ways to do this such as, for example, having mirror Wills and giving Lifetime Interests over estate assets to the surviving Testator. This way the Testator can still enjoy the use of the assets, commonly a home, but they can not access the capital, unless the terms of the Will allow and then it should only be accessed at the discretion of the Trustees.
These Lifetime Interest Trusts are flexible, in that they can be used by more than one individual, they do not have to be married or in any form of relationship and they are easier to prove as the terms of the Trust are clearly stated in the Wills. Equally, they will also protect the assets from being used for the payment of care. If a Testator changes their Will after the death of the other Testator, whilst they can do this, the Trust over the assets prevent them from disposing of the assets, as they only have a Lifetime interest.
Given this, Mutual Wills should only be entered into following legal advice being given to each Testator about the legal implications of the effect of Mutual Wills and after fully considering other ways to achieve the same objective of preserving assets for future beneficiaries.
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