What are mutual wills and constructive trusts?

Guides

While the topic of death and creating a will is never something anyone likes to discuss, it is an important subject to broach with your family if you’re thinking about creating a will so that you can leave your assets and belongings behind to your loved ones when you pass away.

When it comes to will writing, you will often be presented with so much technical and legal jargon that it can be almost impossible to wrap your head around. Below, we’ve put together a brief guide about mutual wills, mirror wills and constructive trusts to hopefully help simplify the meaning of each so you’re better prepared when it comes to either writing your own will or dealing with the will of a recently deceased loved one.

What are mutual wills?

A mutual will is a will that has been drawn up by at least two people (usually a married couple or a couple in a serious, long-term committed relationship) that acts as a bind should one person die. It acts as a promise between the two people about what will happen during the time between the first and second person passing away. In some cases, couples will agree to enter a bind where the second person is unable to make a new will in the event of their partner’s death.

These types of wills are often drawn up by married couples in order to protect the children in the relationship, so if the surviving partner remarries and writes a new will, the children will still stand to inherit from both parents, even if the surviving partner wants to write a new will with their new spouse.

When people make mutual wills together, they have to agree to the following so that it’s mutually binding:

  • They agree to make a will in the form that they have specified.
  • They agree not to revoke the mutual will without the consent of the other partner.
  • They agree to make the will with the intentions stated out in their agreements.

One potential issue that can arise in the event of a mutual will is the establishment of the extent of the assets under the mutual wills trust and the establishment of the extent to which the surviving partner is able to deal with the inherited assets freely. The intricacies of a mutual will and the consequences of one partner dying are something that not many partners discuss when drawing up a mutual will, so some things may be left to interpretation by the surviving heir, but the issue with this is that they have agreed to carry out the wishes as agreed upon in the original terms.

What are the effects of a mutual will?

There are several legal factors that come into effect with a mutual will, including:

  • A testator is unable to revoke the will without the consent of the other person during their lifetime.
  • Upon the death of one person, the surviving partner is obliged to maintain the form of will that was originally agreed upon and they are not permitted to change or revoke it.
  • A constructive trust is placed upon their property which prevents the surviving partner from disposing of it in a different manner than they originally agreed upon.

What are the requirements of a mutual will?

It is required by law to have clear evidence that the testators of a mutual will actually agreed that the wills would be mutually binding. It doesn’t necessarily have to be in writing, but it needs to be presented in a format that provides the court with evidence that a mutual will was binding, rather than just promised verbally between the two testators. The best way to provide evidence is to include the mutual agreement in the will itself. 

The drawbacks of a mutual will

Unfortunately, there are several disadvantages and complications that can arise with a mutual will agreement, including expense and uncertainty due to a lack of understanding of the contents and expectations of the mutual will.

The process of setting up a mutual will is much more complicated than a standard, simple will as there are so many things that must be included in the will so that each party fully understands the expectations and conditions upon the death of one of them. Usually, it is best to seek advice from a legal solicitor who will be able to assist with the creation of a mutual will.

While it is possible to challenge a mutual will, it must be done while both partners are still alive and both parties must be aware of the revocation so each party can update their respective wills.

What is a mirror will?

A mirror will is somewhat similar to a mutual will in that it can be made by two or more people such as married couples or civil partners but a testator is able to create a new will if they have a mirror will, whereas this is not possible with a mutual will. 

The contents of a mirror will identically reflects the contents of each spouse’s will - it “mirrors” the other. So, the first person’s will shows that they’ve left everything to their spouse and their children and the second person’s will shows that they’ve left everything to the other spouse and their children. Upon the death of the second partner, the children of the couple will inherit the assets.

What are constructive trusts?

When a mutual will is made, the assets of the people making the will are held in a constructive which acts as a sort of protection should the surviving partner remarry and create a new will.

Without a mutual will in place, the surviving spouse could remarry and create a new will with their new spouse, leaving their children from their first marriage with nothing. But, a mutual will enables the assets from the first relationship to be put into a constructive trust for the children so they wouldn’t face any legal complications or challenges.