Mutual Wills aren’t always what they seem

Her previous Will dated back to 2017, when Maureen and her husband, Reginald, had made mirror Wills splitting their estates into four equal quarters between Reginald’s three children from a previous marriage and Brett.

The 2019 Will was challenged by Maureen’s three step children with the claim that the 2017 Wills were mutual Wills.  Mutual Wills are Wills made by two or more people, who agree not to revoke or alter them without the consent of the other(s).  There is in effect a contract between them.  When the first individual dies, it is no longer possible for the surviving parties to change the terms of their Will(s).  Whilst a Will may be expressly described as a mutual Will, this is not a legal requirement.

The judge in this case held, based on evidence from the solicitor who drew up the 2017 Wills, that when the wills were drawn up, Maureen and Reginald were made aware that there was no guarantee one or the other would not change the will after one of them died.  They made the wills on the basis of their trust in one another, and they did not contemplate a situation where either would wish to change them.  However, there was no legally binding agreement between Maureen and Reginald that they would not revoke or change the 2017 wills without the consent of the other i.e they were not mutual Wills. He further held that whilst Maureen may have been morally bound, she was not legally bound. Maureen was therefore legally entitled to change her will and make the 2019 will leaving her estate to Brett.

Brett claimed that the reasons that his mother changed her Will were so that he could continue to provide care for her green Amazonian orange-winged parrot and yellow and orange jenday (parakeet). She also wished to continue providing housing for Brett, as she knew her step-children all owned their own properties and would benefit from their own mother’s will when the time arrives, but Brett did not have a property or a family because he had devoted his life to caring for his parents as he felt morally duty bound to do so.

People often consider pets to be part of their family and in the same way that they wish to provide for their human relatives on their death, they also want to ensure that their pets will be looked after. Deciding on the best way to provide for your pet through your Will may depend on a number of factors such as age, life expectancy and current health of the animal, as well as the ongoing financial cost to feed, insure and pay any vet bills.  Depending on the type of pet, if it is something more unusual, you may also need to consider whether your intended recipient has the necessary knowledge to look after the animal and, if applicable, the ability and time to take it for exercise.  For example, although it might seem obvious, if your pet is a Great Dane pup, it might not be the best idea to leave it to your elderly Aunt Josephine, who lives in a one bedroom flat without a garden!

There are various ways in which you can provide for your pets in your Will:

Firstly, if you are not sure that any of your friends or relatives are in a position to rehome your pet, you could leave the animal and a cash sum to a named person with a request that he/she deals with both in accordance with a note of wishes. The note of wishes should say who you would like to look after your pet and what should happen if no one is willing to accept it. The cash can be used to care for the animal until a home is found for it and may be a suitable inducement for the named person to accept the animal, albeit temporarily, when otherwise they might be reluctant to do so because of the expense.

Another option, if you have someone in mind that you would like to take ownership for your pet after you die, is to leave your pet and a cash sum to a named person with the proviso that they must undertake to care for the animal. If they do not agree to look after your pet, you can include alternative provisions.

Finally, you could leave your pet and a cash sum to an animal charity, with the direction that the charity shall find the animal a suitable home.

If you want to provide for your pets in your Will and are not sure which approach suits you best, please get in touch and we will be happy to discuss this with you.

We rarely recommend mutual Wills, as they can be fraught with difficulty and can result in complex litigation.  However, if like Reginald McLean, you want to ensure that your children from a previous relationship are provided for after your death, there are other alternatives that we will be happy to advise you on.  Please get in touch with your usual Wealth Preservation team member to discuss.