Should I make a mirror Will?

Mirror Wills are two Wills made by a couple usually leaving everything to each other and then to the same choice of beneficiaries, usually their children.

The intention of mirror Wills is to provide for the other person and ultimately for the same beneficiaries once both parties have passed away. There are some drawbacks to making mirror Wills however, and it is important to understand these before deciding on this type of estate planning.

Why make a mirror Will?

For a couple who have the same wishes for their estate and want to leave everything to the same beneficiaries, having a mirror Will drawn up is often more cost-effective than having two different Wills.

Both documents will be almost identical, meaning there is less preparation involved in the drafting and checking.

Having a valid Will in place ensures that an estate will go to the chosen beneficiaries. Without a Will, assets pass under the Rules of Intestacy and this could mean loved ones missing out or a family dispute arising.

By making a mirror Will leaving everything to each other, they can be sure that their spouse or partner is provided for after their death.

Points to be aware of when making a mirror Will

The disadvantage of making mirror Wills is that either party could change or destroy the Will at a later date. Legally, this is allowed, and there is no requirement to advise the other person that this has been done.

This means that one person could inherit the entire estate from the other person, then change their Will to leave it elsewhere and not to the beneficiaries originally chosen by the couple when the mirror Wills were made.

Another disadvantage to leaving everything to a spouse or partner is that they could lose or spend the money in some way prior to their death. By way of example, funds could be used up in paying for care home fees.

If the surviving partner marries or enters into a civil partnership, then any Will they have made previously will automatically become invalid. Unless they make a new Will, their assets will pass in accordance with the Rules of Intestacy, with the bulk of their estate passing to their spouse or civil partner.

Protecting your assets

The way around this is to leave the spouse or partner a life interest in property or other assets. This means that they could continue to live in a shared property for the rest of their life, or as long as they wish to, but when the property is sold, the share that belonged to the first to die will pass in accordance with their Will, usually to their children.

For this to be possible, any jointly owned property will need to be held as tenants in common and not as joint tenants. When property is held as tenants in common, it passes in accordance with the terms of a Will or under the Rules of Intestacy. If a property is held as joint tenants, then on the death of one tenant it will automatically pass to the survivor and not form part of the estate to be distributed to beneficiaries.

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What is the difference between a mirror Will and a mutual Will

Clients can often misunderstand the difference between mutual Wills and mirror Wills, despite them differing in their legal aspects.

When it comes to Will writing, many couples believe that only a single Will is required between the both of them. The reality is however, that everyone who chooses to make a Will must sign one separately, including spouses.

What is a mirror Will?

Mirror Wills are virtually identical Wills where one person in a couple leaves their estate to the other in the event of their passing away. In most cases, one spouse leaves everything to their spouse and then eventually to their children, with both Wills outlining this. The result being, that when one of them passes, the other is protected, and upon the second death, the children inherit the assets.

However, issues can arise if the second testator receives the estate of the first testator but then changes his or her Will and leaves his or her estate to different beneficiaries, such as a new spouse. In the event that the second testator changes his or her Will there is nothing that the disappointed beneficiaries can do.

What is the mutual Will?

This is a Will that is mutually binding, meaning that after one party dies, the remaining party is bound by the terms of the mutual Will. The purpose is often to make sure property passes to one’s children rather than to a new spouse (unlike a mirror Will). When the first of the two testators dies, without having revoked his or her mutual Will, the survivor becomes bound by the arrangement. The survivor is still permitted to execute a new Will, however the property which was left under the original mutual Will becomes subject to a constructive trust and the beneficiaries originally named are entitled to receive it irrespective of what the replacement Will says.

At ADL Estate Planning we work closely with our colleagues from several major practices to support them in ensuring their clients are provided with bespoke estate planning solutions. Should you be a professional or a potential client don’t hesitate to reach out.