Mutual and Mirror Wills - The same or similar?

The preparation and execution of mirror wills in this country is not unusual, particularly by spouses or those in long-term relationships. However, considerable caution should be exercised when preparing the same so as to ensure that the testator does not inadvertently execute a mutual will.  Mutual wills are not generally recommended by professional advisers. In this article, I explore the difference between mutual and mirror wills and look at a case where beneficiaries successfully argued that mutual wills had been made.

What is a mirror will?

To be classed as a mirror will two (or more) testators must make wills with the terms of each will mirroring the other(s).  The will(s) can be changed at any time prior to the death of any testators and also following the death of any of them.

What is a mutual will?

With a mutual will whilst again two (or more) testators would make wills which mirror the contents of the other(s), in this case no will can be altered upon the death of the first testator.  Changes can be made to the will(s) prior to the death of any of the testators but upon the death of the first testator all other testators will be bound by the terms of the mutual wills and any subsequent wills executed will be held invalid.

Case Study

In the case of Legg & Another v Burton & Others in 2017 was asked to determine whether the deceased’s will was a mutual will.

The deceased was June Clark.  She died on 8 February 2016.  She had made a will on 12 December 2014, in respect of which a grant of probate was issued on 22 April 2016 to the first defendant, Aaron Burton.  However, she had made a previous will on 25 July 2000 which the claimants, her two daughters, Ann and Lynn claimed was a mutual will, their father having also made a will at the same time, the contents of which mirrored that of his wife.  Mr Clark died on 16 May 2001.

In the years following her husband’s death, Mrs Clark went on to make 13 further different wills covering the period 2004 to 2014.  In broad terms, each will progressively favoured her grandchildren and other beneficiaries to the detriment of Ann and Lynn.  By her last will in 2014, Ann and Lynn would each receive legacies in the respective sums of £10,000 and £30,000, the remainder being bequeathed to various beneficiaries.  Under the July 2000 will they would inherit the entirety of the estate in equal shares.  The value of Mrs Clark’s estate was said to be approximately £213,000 net, the major asset of her estate being the former council house purchased by her and Mr Clark under the “right to buy” scheme back in the 1980s.

Ann had been present both before and when her parents executed their wills in 2000 with Lynn being present for part of the execution.  Both daughters contended that it had been made clear to their parents that the wills could not be changed following the death of one of them and that the contents were “set in stone”.

In the years following the making of the wills and in particular after about 2010 relations between Mrs Clark and her daughters became strained.  At the same time relations between her and her grandchildren were blossoming and she began to spend considerably more time with them.  Whilst this may well have explained Mrs Clark’s change of heart as regards the contents of her will, it did not in fact have any bearing on the decision that the court had to make.

Consideration of the claim

In order to uphold a claim that a will falls within the doctrine of mutual wills and is therefore binding on the testator’s estate despite a subsequent change to that will, it is necessary for the court to find, on the balance of probabilities, that:

• the testator(s) made a legally binding agreement with the other testator(s) that they would make wills in a particular form (not necessarily the same);
• they would not revoke them or change them (without notice to the other(s) sufficient to enable the other(s) to change their own wills as well); and
• having made such wills they had not been revoked or changed prior to the death of the first testator.

To assist in the determination of the claim, the court will review the contents of the will themselves as well as the solicitors’ file (if available) and consider witness evidence relevant to the preparation and execution of the wills in question.

In this case, the court ascertained that Mrs Clark’s July 2000 will was made on the same day as that of Mr Clark.  It was witnessed by the same persons and was identical in form as that of her husband.  Both wills provided for their estates to pass to the other spouse with a provision that if one of the spouses pre-deceased the other then their estate would pass to the children (or any grandchildren living at the time if either of the daughters had pre-deceased their parents).

The court also heard evidence from both daughters as regards the preparation and execution of the wills.  In addition, Lynn gave evidence of a conversation she had with her mother in 2004.  She told the court her mother had told her she was considering changing her will to add in Michelle, Ann’s daughter.  Lynn reminded her mother of the promise she had made to her father and that she could not do so.  Having reflected on the position Lynn said her mother later told her she had decided not to add Michelle.  In fact, however, Mrs Clark had added Michelle was it became apparent during the trial that she made two new wills in 2004 five days apart.  In the first of these wills she added Michelle as executor of her estate and also beneficiary but she then removed her in the second will.  The court considered that Lynn’s evidence in this respect was supported by the preparation of the two wills and further that, at this time at least, Mrs Clark accepted that she had given her word not to change her will.

Lynn also went on to give evidence as to how she questioned her father (after the execution of the wills as she had not arrived to the meeting in time) as to why there was no specific clause within either of the wills.  Lynn stated that her father told her that the solicitor had explained to him and his mother about the implications of making mutual will and that they had both committed and agreed not to change them and given their promises to each other they did not consider it necessary to have an additional clause in the wills themselves.  This conversation took place in the presence of Ann who also confirmed the contents in her evidence.

Judgment

Having heard the evidence and reviewed the other material before him the judge found 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 or change them without notice to the other, thereby engaging the principle of mutual wills.  As such, Mrs Clark was not free to make a new will, whether in 2014 or at all.  Accordingly, her personal representatives must hold the estate on trust to give effect to the provisions of the July 2000, i.e. that Ann and Lynn should inherit the estate in equal shares.

Conclusion

Whilst the preparation and execution of mutual wills remains possible in England and Wales, it can be seen from the above case that they are far from straight forward.  They are not favoured by professional advisers because wills can often be in existence for many many years during which period parties’ personal and/or financial circumstances may have changed and it can be potentially difficult to show that the wills were even mutual wills.  In this respect, had a clause been inserted in Mr and Mrs Clark’s wills or perhaps a detailed letter of advice written to them by their solicitors confirming the preparation and execution of mutual wills (and the consequences of agreeing to the same) a difficult, emotional and no doubt expensive court action could have potentially be avoided.