Mutual Wills: A brief overview of the technical requirements
by Lee Dawkins
The courts have recently revisited the often controversial and misunderstood area of mutual Wills. It would therefore seem an ideal time to review the principles that are generally applicable:-
- Mutual Wills are made by two (or more) people. They are usually drafted in similar terms and they confer reciprocal benefits.
- Mutual Wills are made pursuant to an agreement between the parties to make Wills in those terms and, crucially, not to revoke them without everyone’s consent.
- The agreement to make mutual Wills must amount to a contractual relationship that the Wills shall be irrevocable. It is not enough simply for there to be a desire or an expectation of such, or even a common intention.
- Mutual Wills should not be confused with mirror Wills. Execution of mirror Wills shall not imply an agreement for mutual Wills.
- It is not a requirement that the second testator obtains a personal benefit under the Will of the other testator.
- A mutual Wills agreement can apply to part only of the residuary estate and be written or oral.
- The existence of the agreement must be evidenced clearly and satisfactorily.