Legal Comment by Mark Illidge

Keep it in the family

What is a Mutual Wills Agreement?

A Mutual Wills Agreement is a written agreement between two parties, usually husband and wife, where they each agree to make mutual or reciprocal wills.

 The agreement normally provides that each party will leave their estate to the other, on the condition that neither party will revoke or change their will without the permission of the other party.

Why have a Mutual Wills Agreement?

It is a fundamental principle of law that a person may revoke his or her Will at any time, provided they have mental capacity. Sometimes a revocation of that Will may not even be intentional. For example, a Will is revoked at law by marriage. Therefore, the Will maker cannot simply rely on the fact that reciprocal Wills have been made, and should also enter into a Mutual Wills Agreement.

Mutual Wills Agreements can resolve the Will maker's concern about protecting their children's inheritance in the event that they die before their spouse (particularly where they have left their entire estate to their spouse).

In my experience, a common fear held by people is that if they die having left their assets to their spouse, their spouse will remarry, and make a new will naming his or her new partner as the beneficiary and not making adequate provision for the children of the previous marriage. In these situations, a Mutual Wills Agreement can help protect the interests of the intended beneficiaries and thereby provide peace of mind.

How do they work?

A Mutual Wills Agreement creates a trust that exists despite any subsequent Will and which results in the gifts being ‘locked-in’ after the death of the first Will maker. Any subsequent Will, which revokes or amends the ‘Mutual Will’ will not affect the assets subject to the trust held for the beneficiaries under the Mutual Wills Agreement.

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