Mirror wills vs Mutual wills

When it comes to writing a will, many couples wrongly believe that only a single will is required for the pair of them. In fact, every individual who wishes to make a will requires their own separate will regardless of whether the intentions of the couple are the same. Each will must be signed by the individual and witnessed in the correct manner.

For the will to be a Mutual will it must therefore contain a clause stating that it is the intention of the couple to create a binding agreement. On the death of the first individual, the law then in effect creates a trust over the survivor's assets. The trust will then crystallise on the death of the survivor.

Many people often confuse Mirror Wills and Mutual Wills. So what is the difference?

Mirror wills

These are often drawn up between spouses and are drafted on identical terms to each other. Whilst they are made on identical terms, this does not prevent one spouse from changing the will should they wish either before or after the death of their partner.

Mirror wills are fairly simple and straightforward and do not generally involve specific gifts being left to other individuals. For couples who have fairly similar assets this seems like the easiest and most practical option. However for some couples this may lead to some disputes within the family where one individual is substantially wealthier than the other and passes away leaving everything to their spouse. The surviving spouse could then re-marry and change their will leaving all their estate to their new partner including what they inherited from their deceased partner. It is therefore very important couples trust each other when making mirror wills.

Mutual wills

Just like Mirror wills, Mutual wills are drawn up between spouses and drafted on identical terms to each other. The main difference is that once these wills have been executed, they create a binding agreement between each other which means that the will cannot be changed without the agreement of both individuals. This means that when one spouse dies the other can never change their will, even if they re-marry and wish to change their intentions. It is therefore very important that a couple sits down and discusses the repercussions of this before entering in to a Mutual will.

For the will to be a Mutual will it must therefore contain a clause stating that it is the intention of the couple to create a binding agreement. On the death of the first individual, the law then in effect creates a trust over the survivor's assets. The trust will then crystallise on the death of the survivor. Until this point the survivor will have control over their assets but will be restricted on the amount of control. The survivor cannot spend the assets or gift them away if it is calculated to defeat the trust and prevent the ultimate beneficiary from inheriting.

Mutual wills are becoming historic and many solicitors do not recommend making one. Before making any sort of will, whether Mirror or Mutual, it is highly advisable to obtain the advice of a solicitor and for them to explain the implications of both types of will depending on the clients' personal circumstances.

For further information please contact Elena Stylianou at [email protected]