Can Mirror Wills be Binding and Enforceable?
A Brief Explanation of Mutual Wills
So called ‘mirror Wills’ are made frequently by couples (usually husband and wife or civil partners) who have the same wishes as to how to distribute their estates when they die. In this case their Wills will be almost identical, appointing Executors and leaving their assets to the same beneficiary or beneficiaries. For example, a husband and wife may execute mirror Wills in which they leave their respective estates to the survivor of the relationship and then to their children.
It is a fundamental principle of the law of England and Wales that each person has their own testamentary freedom to make and change their Will as they please. Therefore, the mere fact that a couple have made mirror Wills does not prevent either of them from later changing their minds and revoking the earlier Will and replacing it with a new one setting out different alternative intentions.
From time to time we are asked to advise as to whether Mirror Wills can become legally binding therefore ensuring that the terms of the Mirror Wills are observed irrespective of whether one of the signatories to the Mirror Wills later makes a further Will leaving the assets to someone else. The answer to that question is yes, sometimes Mirror Wills do become binding under the doctrine of Mutual Wills.
The doctrine of mutual Wills is founded upon there being a contractual agreement between the two individuals that they will not revoke their Mirror Wills.
Therefore, for Mirror Wills to become legally binding and enforceable mutual Wills, there must be evidence of a contractual agreement between the two individuals that they will not later deviate from the terms of the Mirror Wills.
Occasionally, the Mirror Wills themselves will contain a clause that states that they are intended to be contractually binding Mutual Wills. However, this is extremely rare.
Usually, there are no actual written contractual terms. Evidence can be adduced from third party witnesses who may be able to recall conversations with and between the individuals regarding their intentions that there would be an agreement that the Mirror Wills would be irrevocable. Other evidence may be contained in letters or other correspondence sent by one or both of the individuals who made their Wills where reference may be made to those Wills and any Mutual understanding or agreement.
Until recently it was very difficult to succeed with a claim that Mirror Wills were intended to be legally binding, irrevocable 'Mutual Wills'. However, the cases of Charles v Fraser in 2010 and Fry v Densham-Smith also in 2010 have shown that the courts may now be adopting a less strict approach.
Indeed, in 2016 we succeeded in securing a successful and valuable settlement for clients in their claim to enforce Mirror Wills made by their father and stepmother in the mid-1990s. It was a second marriage and, as is often the case in second marriages, the intention was for the surviving spouse to receive the estate and, on the death of the survivor, the estate to be split equally between the husband’s family and the wife’s family. Our clients’ father passed away first and, in accordance with the Mirror Wills his estate was passed to our clients’ stepmother. However, our clients’ stepmother then made a series of new Wills under which she dis-inherited our clients in favour of her own family. Working together with our clients we were able to fully investigate the history of the matter and build a compelling suite of evidence in support of their having been a common and Mutual intention between our clients’ father and his second wife that their Mirror Wills were to be contractually binding and irrevocable and our clients’ claim under the doctrine of Mutual Wills was settled successfully at mediation.
Should you have any questions or require any further information regarding Mirror Wills or Mutual Wills, please contact Daniel Winter who is a Partner of Nockolds and Head of the Wills and Trusts Dispute Resolution Team. Daniel is also a full member of the Association of Contention Trusts and Probate Specialists, the recognised body of lawyers specialising in this complex area of work.