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Mutual Wills and Mirror Wills10th January 2020 Will Disputes
Mirror wills and mutual wills offer a combined approach to the distribution of shared assets between those in a relationship.
These wills can assist with the distribution of the estate in accordance with the wishes of both parties, but can also impose restrictions that can affect the future wishes of either party. Therefore it is important that any joint approach to drafting wills is careful considered to ensure that both parties fully understand their respective wills and how they will operate to provide for their loved ones. If this is not the case, it is more likely that disputes may arise. JMW have been involved in a number of cases where disputes arise after someone has died as a result of a failure to consider the correct approach at the time of will drafting.
Mirror wills, as the name suggests, largely reflect the terms of a spouse’s or partner’s will. They are usually drafted to distribute the estate to the surviving partner upon the death of the first partner, and make provision for any children by directing that the surviving partner passes assets on to the children upon their death.
However, wills in these specific terms are becoming less common as families become more complex, with people making wills with their partner perhaps having children from previous relationships who they may wish to provide for in their will. In cases such as these it is not always practical to have wills with identical terms, as this may mean that parties are excluded. Similarly, if the makeup of assets belonging to the parties are complicated, or the assets belonging to each party are vastly dissimilar in value, then a mirror will in these terms may not be appropriate.
Furthermore, with mirror wills in place, there is no guarantee that the surviving partner will not simply change their will after the death of their partner, in line with the principles of testamentary freedom. This can leave the surviving partner’s will subject to dispute and defeats the intention around the drafting of the mirror wills, namely that the first partner to die knows that their children will receive an inheritance on their partner’s death. Therefore, when creating mirror wills, a strong element of trust is required between the parties that their surviving partner will honour their wishes, and if this is not the case, disputes can arise.
In order to address these deficiencies regarding mirror wills, one alternative is to draft mutual wills. This is when two people prepare wills on the agreement that they will not be revoked by the survivor of them. This can provide reassurance to the parties as they will know that whoever passes away first, their wishes will be complied with. However, this can also bring complications for the surviving partner, for instance if the surviving partner remarries or has more children, or they dispose of assets during their lifetime which are given as legacies in a will. Due to this, despite the advantages they would appear to create in terms of certainty of distribution mutual wills are far less common.
One solution to the issues identified above is to draft a mirror will with a life interest trust. This can safeguard the assets under the trust and ensure that they are distributed in line with your wishes to the intended beneficiaries. For example, if both partners share ownership of a property, one partner can leave a life interest trust to their child/children in which their portion of the property will go to their child/children subject to their partner having the right to live in the property for the rest of their life. This means that even if their partner went on to remarry and have more children, the trust would provide reassurance that the assets would be left to the beneficiaries that are intended under the trust.
Therefore, it is very important to seek professional advice when considering drafting mutual wills or mirror wills, particularly where trusts may be involved. It is also important to seek professional advice if you are planning to contest a mirror will or a mutual will or if you are the beneficiary or Executor of this nature that is facing a challenge. Should you find yourself involved in a dispute, JMW Solicitors offers specialised, expert advice that is tailored to your circumstances. Please do not hesitate to contact the team to discuss how we can be of assistance.