Can mutual Wills be changed ?

Strictly speaking, the surviving spouse can make a Will in the usual way and the Will may have legal effect, to appoint executors. However, to the extent that the Will purports to change the dispositions that are subject to the binding agreement, it will be ineffective. This is because, on the surviving spouse's death, a constructive trust will arise under which personal representatives will hold the estate on the terms of the mutual Will.

These points assume that:

?There was a binding agreement between S1 and S2 as set out above. This is the point on which cases on mutual wills generally turn.

?S1 died without having changed the dispositions in his or her will that were subject to the agreement.

The beneficiaries of the mutual Will could all agree to disclaim their interests under the constructive trust but they must all have legal capacity to disclaim so that minor beneficiaries and beneficiaries that lack capacity cannot validly disclaim. As a matter of general law, a beneficiary can disclaim an interest under a trust subject to the conditions that apply to disclaimers generally. For example, the beneficiary can disclaim only if:

?They have knowledge of the interest;

?They intend to disclaim;

?They have not received any benefit from the interest (or otherwise demonstrated that they accept it); and

?They disclaim their entire interest under the trust, not part of it.

For inheritance tax purposes, a beneficiary who disclaims an interest under a trust is treated as if they had never had the interest, provided that they did not make the disclaimer in consideration of money or money’s worth (section 93, Inheritance Tax Act 1984).

A disclaimer of an equitable interest need not be in writing, as it operates by way of avoidance rather than by way of disposition, and so falls outside section 53(1)(c) of the Law of Property Act 1925 (Re Paradise Motor Co [1968] 1 WLR 1125, CA). This case, which concerned a disclaimer of a gift of shares, has a helpful discussion on disclaimers generally. Whatever interests are involved it would seem sensible to document the disclaimer in writing to avoid doubt about whether it has been made. This is particularly important in the case of a mutual will to prevent any of the beneficiaries raising a claim under the constructive trust later on.