It is often said that everyone is free to change their wills right up until the day they die, but as a recent case has identified, that is not always the case. If, for example, a husband and wife make wills on the same date and in exactly the same format, those are often referred to as mirror wills. A mirror will can be changed at any time, but if instead they are mutual, the will of the survivor cannot be changed after the death of the first to die.
In the recent case in July 2000 a Mr and Mrs Clark engaged a solicitor to prepare wills for both of them, which were mirrors of each other. They had previously exercised the right to buy their council house and wanted to ensure that on the death of the survivor of them, their two daughters would inherit everything. Mr Clark died less than a year later, but Mrs Clark lived for another 15 years.
Although when making the July 2000 wills, there was reference to them being ‘set in stone’, in the years after Mr Clark’s death, Mrs Clark’s relationship with her children weakened and her relationship with her grandchildren strengthened. Far from Mrs Clark regarding her July 2000 will as being set in stone, she made no fewer than 13 further wills. Under the July 2000 will, her two daughters would have shared £213,000 between them. Under her last will, one of them only received £10,000 and the other £30,000.
Anyone seeking to rely on the doctrine of mutual wills must prove that the two will makers, as well as making wills in very similar form, also came to a legally binding agreement that they would not revoke them without notice to the other, such that on the death of the first to die, the survivor’s will in effect does become set in stone. In this particular case, the judge decided that these were mutual wills. He decided that in modern times, an intention to make mutual wills was not inherently improbable. He accepted evidence from both daughters that on the day that the July 2000 wills were made, Mr and Mrs Clark told their children that they had decided to make a promise to each other never to change the wills again so that each of them could feel confident that their wishes would still be respected after the other one had died. As a result of this, what Mr Clark wanted to happen did indeed happen (after a fight) but what Mrs Clark ultimately wanted to happen, did not.
In circumstances where spouses or civil partners make wills which are mirrors of each other, it is probably sensible for both wills to confirm specifically whether or not they are intended to be mutual wills. That is a much cheaper way of resolving any uncertainty than getting involved in contested court proceedings when the two key witnesses are no longer around to give definitive evidence of what they both intended at the time.
This is not legal advice; it is intended to provide information of general interest about current legal issues.