IHTM12063 - Joint and Mutual wills: mutual wills

This is where two or more persons each agree to execute a separate will disposing of their property in a particular way. The terms of each will are usually identical or very similar and confer reciprocal benefits - for instance, a husband, wife or civil partner ( IHTM11032) may leave property to each other with the same provision should the other predecease.

However, this in itself is not sufficient to constitute a mutual will. There must be an arrangement or agreement to make such wills and not to revoke them without the consent of the other(s).

Although such wills are usually made by spouses or civil partners to give effect to agreements between them that, on death, they shall each leave their property to the children of the marriage, any two or more persons may choose to execute a mutual will.

If there is an agreement to execute a mutual will and the first party to die has revoked or altered their will, the other party is released from the obligation not to revoke. They also have the right to sue for damages for breach of contract although the amount is likely to be negligible in most cases.

When the wills remain unrevoked at the death of the first to die, a constructive trust will arise at that time. This is on the basis that it would be fraudulent for the survivor to revoke because the person who has died executed their will in accordance with the mutual agreement and can no longer revoke such will, as they are dead.

Example

A and B make mutual wills in which A leaves property to B for life with remainder to C and B leaves property to A for life with remainder to C. On A’s death B is bound by the arrangement so that on B’s death B’s estate will pass to C. This is so even if C dies before B because the trust that arises on the death of A is irrevocable.

It may sometimes be difficult to ascertain what property is subject to the constructive trust. It may be specified within the agreement or the wills themselves. Otherwise the trust may only cover the property which the survivor receives from the estate of the first to die. Alternatively it may extend to that property and also the property the survivor owned at that time or even to all the property that the survivor owned when he died.