The Curious Case of the Mutual Will
What is a mutual will?
Usually when someone thinks about their passing, they set out a declaration of their wishes dealing with what should happen to their property or estate in their absence, commonly known as a will.
However, where two or more people agree to (and do in fact) write a will which contains terms made by themselves in return for terms made by the other, they have created what is known as a “mutual will”.
In what circumstances is a mutual will useful?
Mutual wills are most frequently used where a person wants to protect property they have brought into a marriage for the benefit of selected others. For example, where someone (having children from a previous relationship) wants their current partner to enjoy their property whilst they are alive, but to also to make sure that property is passed to their children upon their partner’s death and not disposed with in some other way.
What happens when one party to a mutual will passes away?
Where one party to a mutual will passes away without revoking their will, equity will intervene and treat the agreement as irrevocable. This is justified by the court on the basis of the prevention of fraud. As the first party died having completed their part of the agreement, the court will not allow the second to break the contract. It is easy to see how it would be unjust for one party, having allowed the other to pass away in the belief that the agreement they made together would be carried out, was then allowed to deal with the property in a way other than as they agreed.
Can I revoke a mutual will?
While both of the parties are living, either of them may revoke their will if sufficient notice is given to the other.
What does a mutual will require?
Although it is preferable to create one, a mutual will does not require a formal contract. All that is required is the creation of an arrangement of the above kind that is sufficiently clear and precise for the court to be able to enforce its terms.
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