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Posted 14 November 2017
by Martin Laver

Mirror Wills v Mutual Wills

It has become increasingly common for married couples to use Mirror Wills to deal with their estates. A Mirror Will is a simple arrangement where each spouse leaves their entire estate to their spouse, then to their children.

Mirror Wills leave no obligation on the surviving spouse to leave their estate in any particular way and the surviving spouse can then make a new Will which leaves the entirety of the estate to his or her own children, or anyone else they choose. In a standard family situation, this can work well however where there are fractured relationships or step-children, these types of wills can often lead to disputes.

Mutual Wills, on the other hand, are where couples agree to leave their estates in a particular way when they have both died.

It is a common misconception that Mirror Wills are automatically Mutual Wills. This is not right unless there is clear evidence of a binding promise between the couple when they made their respective Wills.

The recent case of Legg and Burton v Burton and others illustrates the difficulties. Mr Clark and Mrs Clark made mirror wills in 2000, leaving the entirety of their estate to each other and in default to their two children, the Claimants. Mr Clark sadly passed away in 2001 and so his estate was left to Mrs Clark, who went on to make three wills in 2004. The Claimants and Mrs Clark fell out in 2010 and Mrs Clark went on to make 10 further wills (13 in total), all of which departed from the terms of the 2000 will in numerous different ways. Mrs Clark then died in February 2016.

The Claimants brought a claim asserting a constructive trust under the principle of mutual wills and claimed that the estate of the Deceased was held for them pursuant to the 2000 wills. The Defendants, the Deceased’s grandchildren, denied that there had been any agreement or intention of mutual wills and believed that the Deceased’s behaviour after 2000 was inconsistent with having made such an agreement. Ultimately the Court had to get involved.

The law requires that in order to succeed in a claim of this nature, the Claimant must prove, on the balance of probabilities, that the testator made a legally binding agreement with the other testator that both would make their wills in a particular form and that they would not revoke them after the other had died.

The Claimants presented evidence that Mr and Mrs Clark had invited the Claimants to be present when they executed their wills before the solicitor who had prepared them. Mr Clark asked the solicitor specifically if the wills were ‘set in stone’ and the solicitor said that the parties were always free to change the terms of their will. The solicitor was aware that the Deceased and Mr Clark never wanted to change their wills again and their trust in each other was enough for them. Even after they signed their wills, the Clarks both referred to their promises not to change their wills.

The Court found that Mr Clark and the Deceased made an agreement before the execution of their 2000 wills and afterwards and the wills were irrevocable. Accordingly, the Claimants were to benefit from the gift of the house provided under the earlier 2000 wills.

Couples thinking of making mutual wills should always seek advice from a specialist about doing so.

If you would like more information or a free initial discussion about a potential dispute, contact our disputed wills team on 01392 207020.

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About the author

Martin Laver

Partner and Solicitor

Partner in the commercial litigation team specialising in disputed trusts and Wills