Q: I seem to recall your advice against joint wills and mutual wills. Yesterday, I overheard someone the other day talk of joint will. I’m confused. Was this just a slip of the tongue or do these people know what they’re talking about?

A: On my 25th birthday, Lorna Thompson took me to the cinema. We saw Die Hard II. This movie was the 7th highest grossing moving picture of that year. It was by that rating just ahead of Presumed Innocent.

To paraphrase the noted cinema critic Roger Ebert, in the summer of loud cinematic expositions; of loud explosions and machine gun fire; of screams and crashes, Presumed Innocent is a muted movie. This film started life as a novel. The book had enjoyed enviable commercial success. That the novel is a great work of literature – let’s just say it’s one of the rare sort of book that was improved by being made into a film.

joint wills and mutual wills
Joint and Mutual Wills: Sloppy Language Might Land You Before a Judge

Joint Wills and Mutual Wills: Use of Precise Language

In the book, the prosecuting counsel – I forget what such officers of the court are called in the land of Lincoln and Washington, delivered a soliloquy.
I can hear English teachers everywhere including my mother, slapping their foreheads in exasperation as a speech to the court wouldn’t normally be called a soliloquy.

We’ll see how this relates to joint and mutual wills in a minute.

The address to the jury was perhaps in subconscious expectation no one was paying much attention on account of it being overblown melodramatic over-the-top nonsense. See, I told you it wasn’t such a sound book.
The lawyer character, written to betray a lamentably shallow grasp of the rudiments of rhetoric, sought the conviction of the accused – in order to give the citizens a paid-up insurance policy so that if the arraigned man were convicted, and sentenced to death, on his execution he would have been deprived of the opportunity to reoffend.

A ‘paid up insurance policy’ has a precise meaning, not at all what the character might have wanted to say,
it is not at all what the character meant to say – making an insurance policy paid-up does not improve or strengthen it any.
An insurance policy being paid-up is generally a weaker insurance policy as it would not collect any more premiums.
My memory of this unfortunate phraseology was roused recently.

Mutual and Joint Wills in the Press

A prominent publication carried an article which referred to a mutual will.
Further in the write up, there was talk of a joint will.
This was one of the most prestigious two newspapers in the country, yet, it betrayed the confidence that its readership held it by advising that they consider joint wills and mutual wills.

Inflamed with indignation, I thus uncorked my fountain pen and fired off a furious letter to the editor. The mutual will is a specific style of will- the joint will is a distinct type of document.
Joint wills and mutual wills are not synonymous with mirror wills.

Mirror Wills

Mirror wills are an administrative convenience which have nothing to recommend them beyond the convenience. They are a poor inheritance planning tool.
Mirror wills are written by couples because they deal with the same assets and the same beneficiaries. Mirror wills, as inadequate as they are, are a damned sight better than joint and mutual wills.

Joint wills

The joint will is a rare beast. A single document stating the wishes of the two parties to a relationship.
Problematic. Don’t.

Mutual Wills

Wills in which two or more people write individual wills to cover their estates. Each will contains a clause to the
effect that it may not be changed without the consent of the other parties.

David and Elaine Frederick were happy. They did the grown-up thing and created wills. Their wills, mutual wills, had a clause stating that the will could not be changed without the agreement of both parties.  

Their marriage vows, like those of millions up and down the land, were, till death do us part. Elaine was widowed at 39, while pregnant with their third child. You see the flaw in the Frederick’s wills, don’t you?

There were good reasons for Elaine to change her will – the primary and most obvious was that she wanted all her children to be beneficiaries of her estate. David, being dead, could not agree to the change.  

I’ve never draughted a mutual will. I’ve never seen cause to write a mutual will. The first rule of mutual wills is: we don’t do mutual wills. Ever. Couples generally want their inheritance to be preserved for their children if the surviving spouse remarries (or forms another relationship).

Joint and Mutual Wills – Never!

Therefore, joint wills and mutual wills have no place in modern inheritance planning – in the sort of arrangements you want to be making for your family or more pertinently in arrangements of which you might be a beneficiary. Joint wills like mutual wills are poisonous and as sure as a penny to a pound to tie up the estate in litigation.

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