Island Life Magazine Ltd February/March 2012 | Page 32

LEGAL ISSUES
with Terence Willey & Company

The advantages of mutual wills
It is not uncommon for married
couples, partners and relatives
to complete “mirror Wills” in
circumstances where each require their
respective estates to be divided by
agreement. For instance; a husband
and wife may decide that in the first
instance they would leave their whole
Estate to one another and upon the
death of the survivor of them for
their Estate to be divided between
their children or children of a former
marriage and perhaps other members
of their respective families. Is this
safe enough? In a word “no”, as, in
the case of a mirror Will it is open to
the surviving individual to revoke the
earlier Will and completely change the
distribution of the Estate so inherited
by them.
A recent decision in the High
Court last year highlighted the clear
difficulties that arise in terms of the
interpretation between ‘mutual’ and
‘mirror’ Wills. The circumstances of
this case were that in 1991 two elderly
sisters respectively aged 76 and 78
made Wills in identical form. They
left to each other their Estate in the
first instance and upon the second
death to be divided into 40 equal
shares between 15 named Beneficiaries.
The younger sister died first and her
Estate passed to her elder sister under
her Will. The older sister so surviving
subsequently made an alteration to her

Will, although this was not relevant
to the subsequent Court proceedings.
What was relevant though was that
in her new Will she left her whole
Estate to her neighbour which was
not inconsiderable. However, the
Beneficiaries under the earlier Will
claimed that the later Will completed
by the elder surviving sister was
invalid because the Trust created by
the ‘mutual’ Will made some years
previously by them both could not be
overridden.
Notwithstanding the fact that the
Wills did not contain any statement
to support the contention that they
were intended to be ‘mutual’ Wills
the Judge decided in favour of the
claimants but identified several
important steps that should be
considered in such cases namely
that ‘mutual’ Wills are Wills made
by two or more persons usually
in substantially the same terms
in conferring reciprocal benefits
following any agreement between them
to make such Wills and not to revoke
them without the consent of the
other. For this doctrine to apply there
must be what amounts to a contract
between the two persons making such
‘mutual’ Wills, stating that both Wills
will be irrevocable and will remain
unaltered. It was made clear that a
common intention for expectation
and desire is simply not enough. What

therefore can be particularly learnt
from this recent case; that if there is
a clear intention for two individuals
to make and complete ‘mutual’ Wills
there must be an express agreement
incorporated in the Will making
specific reference that such Will is
made with the agreement of the other
and that no alteration or revocation
is permitted without such agreement.
There are obviously clear advantages in
ensuring that clear ‘mutual’ Wills are
established, rather than simply mirror
Wills which can be rewritten by the
surviving individual.
In the vast majority of cases
indiv iduals tend to trust one another
that in completing mirror Wills that
they will remain in place and not
revoked, but as can be seen from the
above case, trust of one another’s
express wishes may simply be not
enough!

Terence Willey & Company., Lawyers and Commissioners for Oaths
(incorporating Malcolm Daniells & Company and The Bembridge Law Practice)
Contact Terence Willey 01983 875859 or Mark Willey 01983 611888
www.terencewilley.co.uk
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