Should You Contract To Make A Will

What are Mutual Wills

Mutual Wills are Wills made (usually) by two parties who agree by contract that each person shall make a Will in a particular form and will not alter their Will without the consent of the other, including after the death of the first person.

If you make a Mutual Will with another person (usually your spouse) and after their death, you break the agreement by making a new Will in a different form, the new Will will be valid.  However, the executor of the new Will will hold the assets which were the subject of the Mutual Will for the beneficiaries under the Mutual Will, thus enforcing the Mutual Will.

Advantages of Mutual Wills

The main advantage (and reason for) Mutual Wills is that the parties know what they and other beneficiaries will receive under the Will and that this cannot be changed.

Disadvantages of Mutual Wills

However, there are problems with Mutual Wills including the following:

• A contract between spouses where each agrees to leave everything to the couple’s children after the death of the surviving spouse can be avoided, without breaching the contract, by the surviving spouse dissipating their assets after the first person has died.

• It is sometimes wise to limit the assets within the contract to those assets owned by the Will makers at the time they make the Mutual Will, but again these assets can be dissipated.

• The surviving person cannot change their Will whilst the other person is alive without their consent, and usually not at all after the other person dies.

This inability to change the Will after the other person dies can be the major source of problems with Mutual Wills.  The surviving person will not be able to change their Will after the first person dies, even if for example, one of the beneficiaries becomes drug-addicted, financially irresponsible, unwell, or would lose a Government benefit if the asset was given to them directly.  There can be other reasons (foreseeable or not) making it wise to be able to change a Will after a spouse dies.

Mutual Will’s do not prevent the Court from using the deceased’s assets to satisfy a family provision claim.  In Barns v Barns (2003), the High Court held that a promise to leave property by Will did not take the property out of the estate, which made the property available for a family provision claim.