Mutual wills, constructive trusts and… trust.

A frequent question our married or cohabiting couples is: “what if I die and my partner/ spouse remarries?” Unless you have a mutual will your spouse or partner will have discretion about what they can do with their property. This includes assets they have inherited from you.

Andrik Langfield couple picture

So what’s a “mutual” will then?

The short answer is that it’s a form of will made with another person where you make promises to each other about what happens in the time between the first of you and second of you passing away.

Typically partners or married couples enter into mutual wills. Often this is to protect the children in the relationship. It is a common worry that someone left behind may remarry. Worse still the survivor may rewrite their will to solely benefit the new spouse. The children of the first marriage would not receive anything as inheritance from either parent if this happened.

If there is a mutual will then the assets of the people making the will are held in a “constructive trust”. A common example involves a couple leaving everything to each other and to the children on the death of the second of them. Without mutual wills the survivor could remarry or change their mind. The children from the first will may receive nothing (barring any potentially expensive legal challenges).

If there was a mutual will the assets in the relationship would enter into a constructive trust for the children. Any subsequent marriage or new will by the survivor would not be able override that first set of wishes.

What’s the drawback?

Money, uncertainty and expense. Both in creation of the wills and implementation and administration of the trusts are expensive and fraught with potential for misunderstanding or conflict.

Setting up mutual wills is a complicated and time consuming process. It goes far beyond the scope of a simple will. If you are considering it you should bite the financial bullet and speak with a traditional solicitor.

Administration of the trust following the death of the first of you can be expensive and time consuming. The duties of trustees are wide and varied. A professional trustee is often advisable to avoid conflict or dispute.

Mutual wills are also frequently challenged at court. The survivor may find themselves unable to live their life the way they wish to. Understanding of the nature of the obligations on the survivor is difficult. The survivor may knowingly, recklessly or accidentally breach their obligations. That could draw wider family into an unwanted conflict.

Can you revoke a mutual will?

Yes. But there are conditions. Firstly – it must be revoked whilst both parties are still alive. Secondly – the revoking party must tell the other person. This allows the other person to update their wills too.