Two will-makers make “mutual wills” when they make wills that dispose of property in a way that they have agreed and each promises the other that they will not revoke or change the will in any way that fails to keep the agreement in the same or a better way or dispose of the property that the will specifically deals with.
When the first of the will-makers dies and keeps the promise, and the second will-maker dies but does not keep the promise, the person that would have received the benefit can claim against the estate of the person that did not keep the promise.
A common situation where it would be appropriate to have mutual wills is where persons enter into a second relationship and each have children from their first relationships. At the time they make their wills, the parties might agree to leave their property to the survivor upon the basis that on the death of the survivor the property would be distributed amongst both sets of children equally. The first person might die with the result that all the property passes to the second person, and for a variety of reasons the second person decides over time to change or make a new will that does not make any provision for their step-children. If the step-children could establish that the promise had been made then they could make a claim against the second person’s estate.
Section 30 of the Wills Act 2007 sets out a codification of the law on mutual wills made after 1 November 2007 and Judge-made law applies to wills made prior to this date.
The promise can be made orally, in writing, or electronically. It is obvious that it is much better to record the promise in a written document that is signed and witnessed as any claimant will be attempting to prove the promise after both will-makers have died.
Making mutual wills is something that should be thoroughly considered as it will import a degree of inflexibility into how the survivor may deal with property, and for it to work what is proposed would need to be practical.
Another option that could be considered, in the second relationship scenario, would be to leave a life interest to the survivor.
If you and your partner wish to make mutual wills or make other arrangements, then we would recommend that you discuss the question fully with your solicitor so that a considered decision can be made which can then be appropriately documented.