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.
- They 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 them 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.
- They 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 Will agreement can apply to part only of the residuary estate and be written or oral.
- The existence of the mutual Wills agreement must be evidenced clearly and satisfactorily.
If a dispute arises in connection with a mutual Will then it is important to seek specialist legal advice as the law governing this area is highly technical.