Making your Wills together
There are three different types of wills that two or more people could make together: Mutual Wills, Mirror Wills and Joint Wills.
Whilst these terms might seem almost interchangeable, their legal effects are very different.
Mirror Wills are two separate documents, which may use identical wording or simply be reflective of each other’s contents.
Neither individual’s Will is binding on the other person. Each person is free to change their Will at any time, without notifying the other individual.
Mutual Wills are also contained in two separate documents, but with both Will makers agreeing to be bound by the terms of each other’s Will and that they will not revoke their own.
This forms a legally binding ‘contract’ between the two individuals that can’t be changed without notification being given. If one person dies, the agreement becomes permanently irrevocable.
A Joint Will is a single document signed by multiple people, which deals with each signatory’s property separately within the same Will. Unlike a Mutual Will, a Joint Will is not intended to be irrevocable in and of itself.
Which type of Will is right for me?
We generally don’t advise our clients to make Mutual Wills. The binding nature of these documents leaves little room for manoeuvre if one person dies and the survivor’s life circumstances change.
For example, they may need to protect certain assets from being used to pay for care fees.
Evidencing the binding agreement can be very difficult, as they are often not written down.
Such disputes, if handled incorrectly, can quickly use up money intended for the beneficiaries of the Will.
There are better, more effective ways for Will makers to achieve their goals.”
Joint Wills vs Mirror Wills
Joint Wills are a fairly outdated concept now and are very rarely seen in practice. They are frequently open to disputes after both individuals have died, because of the doubt they almost invariably create over each partner’s wishes.
If you have a Joint Will you should consider updating it.
Most people would prefer to make Mirror Wills instead. Mirror Wills have the advantage of offering the most flexibility to each individual, as each remains free to change their Will before or after the other’s death.
Most of our clients tend to choose Mirror Wills for this reason – the changing circumstances faced by modern families make flexibility a valuable benefit.
There’s also sometimes a cost benefit to making Mirror Wills. If the terms of the Wills are identical or near enough, it’s potentially easier for the professional Will writer to make a pair of documents, which may mean the cost is discounted in comparison with two substantially different Wills.
However, with Mirror Wills the parties are relying on the surviving individual to ‘do the right thing’ rather than imposing an obligation on them to do so.
Unlike Mutual Wills, because they don’t normally create a binding contract between the individuals, it’s possible for one person to change the Will in ways that the first to die would not have intended or desired.
For example, a widow could remarry and opt to give the whole estate over to her new husband in a rewritten Will. This could well go against the wishes of her deceased first husband who would have wanted his own children to inherit. This can, however, be protected against by the use of trusts in the Will.
It’s possible, though rare, for Mirror Wills to be treated as Mutual Wills by a court, for example if both individuals agreed verbally that the Wills would be irrevocable when they made them. Can you guard against this risk?
Mark Scanlon, who is often instructed to defend Wills in contentious probate disputes, suggests “the issue of Mirror Wills being treated as Mutual Wills by a court is a rare occurrence, albeit with notable instances. The majority of clients shouldn’t worry about it.”
Generally speaking, Mirror Wills are a sound option for most couples.
Yet, whilst we wouldn’t want to put a couple off from making Mirror Wills, it’s clear that for some people they could have drawbacks.
In these circumstances, the addition of a trust could be the answer.
Trusts – an alternative route
Very often, these pitfalls are focused around specific assets such as a property or investments which one of a couple wishes to ensure passes in a certain way after both individuals have died.
One good way forward can be to include trusts in the Mirror Wills to come into effect on the first death or to place particular assets in trust while both individuals are still alive.
When a trust is created, trustees are appointed and given very specific instructions on how the assets should be managed.
This includes allowing both parties to continue to benefit from them until their death and then specifying their destination.
For extra peace of mind, the trustees can include a solicitor who is professionally bound to follow their clients’ instructions.