Understanding mirror Wills and mutual Wills

If you and your partner/spouse want to make similar Wills, you have several options.  Including mirror Wills and mutual Wills. We take a look at the benefits of both mirror Wills and mutual Wills, as well as the pitfalls of not having the right Will in place.

It is often the case that a couple wants to make Wills that treat each other and their children in the same way. Frequently, people want to leave the bulk of their estate to each other.  Then, when the second person dies, pass everything on to their children.

On the surface, it is enough for both parties to make Wills with the same wording. However, issues can arise after the death of the first to die.  For example, the survivor changes their mind about their Will and decides to make a new one. Alternatively, they may remarry, or they could lose the money in a poor investment or in paying for care home fees.

What is a mirror Will?

Mirror Wills are two Wills with identical or very similar provisions.  These are generally made by a couple who are married, in a civil partnership or cohabiting. They usually leave their estate to each other so that after the death of the first person, the survivor inherits everything. Then, when the survivor dies, their estate passes to the same choice of beneficiaries. This could be children, other relatives, charities, or a mixture of all of these.

The effectiveness of mirror Wills depends on the survivor not making a new Will or remarrying, as marriage automatically invalidates a Will.

What is a mutual Will?

If a couple wants to take steps to try and prevent each other from changing their minds in the future, they may want to consider a mutual Will. This usually involves similar provisions, leaving their estate to each other and then, following second death, to their children or other beneficiaries. However, the couple will also enter into a legal agreement not to change the terms of their Wills. This could be by declaring in the Will that it is a mutual Will. However, it may also be possible to prove that their Wills were intended to be mutual in another way.  For example, if a couple has made a verbal agreement to this effect.

In the case of Legg v Burton [2017], a couple verbally promised each other that they would not change their Wills. They left everything to each other and then to their two daughters. They told the daughters that they had promised each other that they would not change their minds in the future.

After Mr Clark’s death, Mrs Clark’s grandsons became increasingly involved in her life and over the years, she made numerous Wills.  Each time she left more money to the grandsons and less to her daughters. By the time she died, her daughters were only left modest cash gifts in her most recent Will. The court found that the verbal promise that Mrs Clark had made to her husband had created a legally binding agreement. This meant that her subsequent Wills were not valid.  Therefore, her daughters were entitled to her estate as she and her husband had initially agreed.

Making the right Wills as a couple

It is important to take legal advice when putting Wills in place as a couple. Another option might be more appropriate, such as leaving your spouse or partner a life interest in your assets. This means that they could continue to live in your shared home for as long as this is needed, but once they die, you can be sure that your share would pass to your choice of beneficiaries.

As well as avoiding any risk that a spouse could try to leave funds elsewhere, this will also protect your estate.  This is against it being lost or spent by your spouse or partner during their lifetime.  For example, if they were defrauded or ran into debt.

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