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Mirror or Mutual Will? Make sure you know the difference.

6th January 2022 by Rob Kelly

Categories: Private Client News
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Many partners like the idea of making their wills together but they may not understand that there is a choice between making a mirror will and making a mutual will.  There is a critical difference between them, and one which had great significance in the case of Legg and anor v Burton and ors.

Mirror wills are executed in terms that mirror each other but they do not bind the survivor.  Mutual wills are like mirror wills but they are legally binding on both parties, even after the death of the first.  The legally binding nature of mutual wills creates a trust over the survivor’s assets so that those assets cannot be disposed of by the survivor.

In Legg, a married couple made wills in July 2000 by which they left their assets to each other and then, on the death of the survivor, to their children.  The husband died.  His wife survived him by 15 years but in that time she made 13 more wills.  Her last will stated to leave a modest legacy to her daughters (who were intended to share the estate between them under the original will made in 2000) and the balance of her estate to her grandchildren.

The daughters sought to overturn the last will on the ground that the wills executed by their parents in July 2000 were mutual wills.  The daughters gave evidence that it had been agreed between their father and their mother that neither of them would revoke their wills, nor be entitled to change the terms of their wills, nor to leave their joint estates to anyone other than the daughters.  The court upheld the daughters’ claim and ordered that the late mother’s estate must be held by her personal representatives on trust for the daughters to give effect to the will which she made in July 2000, and not her last will made in December 2014.

To avoid disputes of this sort it is very important to seek legal advice so that the documents which are executed reflect the intentions of the parties.

If you would like further information about this article please contact Rob Kelly.

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871

Email

Rob Kelly
  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall CEO - Diamond Sporting Group

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

    Dan Collins

  • “ I just wanted to thank you for your great work on the professional negligence case and other cases you have represented Indian Ocean and Tiien through the last few years.”

    Mehdi Vahdati, Director and Proprietor - Indian Ocean (Bournemouth) Limited

Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

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