Joint and Mutual Wills
What is a joint will?
A joint will is a will made by two or more “testators” (the persons who make the will) contained in a single document. The law treats a joint will as being two or more separate wills. When the first of the testators die the joint will is admitted to probate as if it is the will of the testator who has died. When the second testator dies the will is admitted to probate as if it is the will of that testator, if no fresh will has been made since the joint will was made.
Joint wills are very rarely used.
What is a mutual will?
Mutual wills are wills where two or more testators make separate wills or make a joint will and in doing so agree to confer on each other reciprocal benefits or agree to confer benefits on the same beneficiaries.
For wills to be treated as mutual wills there has to be an express agreement between the two testators that both wills will be irrevocable and will remain unaltered. Normally such an agreement will be incorporated into the wills of each testator. However, it can be contained in a separate document or even made orally (if the agreement does not affect land).
What is the effect of a mutual will?
Where mutual wills are made if one of the testators dies and the deceased testator stood by the agreement the surviving testator(s) will hold the property and assets of the deceased testator in “trust”. If the surviving testator(s) fails to perform their part of the agreement, for example if they revoke or alter their own will, the surviving testator(s) commits fraud and if an application were to be made to Court, the Court is likely to refuse to give effect to such revocation or alteration.
If the deceased testator did not stand by the agreement, for example if he or she revoked or altered his or her will before their death then the surviving testator is not bound by the agreement and is, therefore, free to revoke or alter his or her own will.
Mutual wills can have the effect of restricting the freedom of a surviving testator to effectively deal with both his or her own property and/ or the property inherited from the deceased testator. Problems can also occur if one of the testators remarries after making a mutual will as the mutual will will probably remain valid. For these reasons many legal advisers do not recommend mutual wills.