When it comes to estate planning, few areas cause as much confusion and potential conflict as mutual Wills.
While often confused with mirror Wills (which are simply similar Wills made by two people, often spouses), mutual Wills are legally binding. Once one party dies, the surviving party is generally unable to change the terms of the Will, even if circumstances change.
This can be a useful tool in blended families or where there’s a shared intention to protect children’s inheritance from previous relationships. But when poorly documented or misunderstood, mutual Wills can lead to costly and emotionally draining disputes.
What Makes a Will ‘Mutual’?
To be considered mutual, Wills must be made under a clear agreement that:
- Both parties are creating Wills with the same terms
- The Wills are intended to be irrevocable once one party dies
- The survivor holds the estate on trust to carry out the agreed terms.
But proving that agreement isn’t easy.
Courts place a heavy burden on those trying to enforce an alleged mutual Will, especially if the agreement wasn’t documented properly. Oral agreements or vague intentions often fall short.
Case Example: Why Documentation Matters
Recent court decisions, including Forster v Forster and Thynne v Sheringham, highlight how mutual Wills can unravel if the terms aren’t clear or the agreement isn’t well documented. Even with good intentions, a lack of clarity can trigger legal battles and tension among family members.
Four Tips to Protect Your Legacy
- Get legal advice: Mutual Wills aren’t for everyone. We can help assess if they’re the right fit.
- Document the agreement: Don’t rely on memory or informal conversations.
- Review regularly: Make sure your Wills still reflect your wishes.
- Consider alternatives: In many cases, a testamentary trust offers greater flexibility and protection.
At The Quinn Group, we help individuals and families create estate plans that protect their assets – and their peace of mind.
Need Help?
Call us on 1300 (QUINNS) or + 61 2 9223 9166, or submit an online enquiry today and schedule a meeting or teleconference.
