Mutual wills: what they are and when couples use them
Mutual wills bind two people to a shared set of gifts. They're powerful but inflexible. Here's when they fit – and when they don't.
Mutual wills are a binding agreement between two people (typically a couple) that neither will change their will without the other's consent. They create real certainty about where assets end up – at the cost of flexibility.
What are mutual wills?
Mutual wills are two separate wills signed in identical or coordinated terms, with an explicit agreement between the testators that they won't change without the other's consent. On the first death, the agreement binds the survivor to the terms of the mutual wills.
When they're useful
Blended families
Mutual wills are most often used in blended families. Each partner wants certainty that their biological children (from a previous relationship) will inherit once the surviving spouse has passed – and the binding agreement provides that certainty.
Agreed charitable giving
Couples who agree on substantial charitable bequests sometimes use mutual wills to prevent either partner changing their mind later.
Second-marriage inheritance protection
If the couple is worried one partner might remarry after the other's death and redirect the estate, mutual wills can lock in the original intent.
How they work legally
Mutual wills are an agreement enforced by equity. If the surviving testator changes their will in breach of the agreement, the court can impose a constructive trust on the estate – forcing the original intent. The agreement must be clear and documented.
Downsides and risks
Inflexibility
Life changes. Beneficiaries may become unsuitable. New family members arrive. The surviving testator is locked in. This can be painful.
Disputes
Mutual wills can invite family disputes – beneficiaries may argue the surviving testator breached the agreement. Litigation is expensive.
Gifts during lifetime
The agreement binds the wills, not the gifts made during the surviving testator's lifetime. A surviving spouse can potentially give away assets during their lifetime to circumvent the mutual will arrangement – though this can sometimes be attacked.
Alternatives
Many blended-family concerns can be addressed with simpler tools:
- Rights of residence with property passing to biological children
- Testamentary trusts with defined beneficiary classes
- Specific gifts of particular assets to particular people
Summary
Mutual wills provide powerful certainty but at the cost of flexibility. They fit blended-family scenarios and couples with strong shared philosophies. For most couples, simpler tools give adequate protection with less rigidity.
Talk to Sam about your situation
If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our wills service, or book a consultation.
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Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.