I have a matter where a husband wishes to revoke the mutual Will he made with his wife several years ago. The wife is still alive but does not want to change it. The Will is a valid homemade Will but has no clause stating it is or is not a mutua; Will therefore if the both parties consent to the mutual Will being revoked and to make new ones is this allowed and can just the gentleman make a new Will with consent from his wife and the wife keep the current Will.
The doctrine relies on there being an agreement that neither party will revoke their wills. If there is no reference to this in the wills then they are presumably just ordinary mirror wills, and not mutual wills, so can be revoked at will (no pun intended).
Maybe agreement can be made orally but it would have to be clear and unambiguous.
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I believe you need to look beyond the wording in the will as I have come across many will drafters (usually solicitors) who insist that the declaration of mutuality is by way of a separate letter held with the wills.
Whilst I consider this to be an unsatisfactory (if not potentially dangerous) way of creating mutual wills, it seems an ingrained view!
If it is believed that wills might be “mutual”, I suggest an enquiry of the will drafter if there is no declaration within the will.
With regard to the situation in question, as it is not until the death of the first of the “mutual” testators that the promise is binding, either can change their will, provide the other has not lost capacity in the meantime. However, if they change their will without notice to the other, I can foresee litigation.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
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