Couples Making Wills
Posted on 18th November 2022 at 11:28
When writing wills for couples we often find that the terms of them are largely reciprocal. Usually, these types of paired wills are referred to as ‘mirror’ wills. Mirror wills must never be confused with ‘mutual’ or (gasp!) ‘joint’ wills. These terms are sometimes used interchangeably for mirror wills but this is incorrect as they are each their own distinct thing. This week we will consider these different types of paired wills.
Of the three types of paired wills mentioned mirror wills should be the one that Will Writers are most familiar with. These are often drafted for spouses, civil partners, and cohabitants although they are not limited to this. It is less common to see mirror wills being drafted between friends or siblings, but not totally unheard of.
The term ‘mirror wills’ is a general term and not a legal one so there is no strict definition. To be mirror wills the terms of the wills should be largely reciprocal. The most common example of this is a will for spouses whereby they each appoint each other as executors, leave their estate to each other on first death and then their children on second death.
Some practitioners will only call it a mirror will if the terms of each will perfectly reflect one another. Others take a slightly more flexible approach and will call it a mirror will even if there are some minor differences such as different executors or a few different specific gifts, as long as the bulk of the provisions are reciprocal.
Mirror wills are in reality two separate wills. Each individual is free to revoke or alter their will at any point in future. Executing mirror wills does not imply any agreement between the testators that they intend the wills to be mutual. To avoid any doubt as to whether the wills are mutual some practitioners opt to add a clause to clearly state that the testators are free to amend or revoke their wills. For example:
“Although this will is in similar terms to the will of my [wife OR husband] [NAME], we have agreed that either of us can change or revoke our Wills at any time.”
Mutual wills are often also mirror wills. Mutual wills are executed by two (or more) people and usually confer reciprocal benefits on each other. For wills to be mutual the testators must agree that the wills are mutual, that they will each be bound by the agreement, and that neither party will alter or revoke their will. This agreement should be expressed within the will itself, such as:
“My spouse [NAME] and I have agreed with one another to execute wills in similar terms and have further agreed that such respective wills shall not hereafter be revoked or altered either during our joint lives or by the survivor of us.”
It is not actually possible to make a will irrevocable. The survivor could revoke their will and write a new one, and their remarriage would automatically revoke the will just like it would any normal non-mutual will. However, the effect of mutual wills is that equity enforces the agreement against the survivor by way of a constructive trust. The survivor is treated as holding the property on trust for the beneficiaries in the mutual wills so after death their personal representatives will take the assets subject to the constructive trust.
The trust created floats during the survivor’s lifetime and only crystalises on their death, so they can spend the assets during their lifetime and their estate can still be depleted by care home fees or bankruptcy. They cannot give away assets to defeat the agreement though.
There are uncertainties surrounding exactly what property this trust attaches to. There are conflicts of opinion over whether the property bound is the property received from the first to die as well as the property that the survivor owned at the time of the first death, or whether the trust also attaches to all of the property that the survivor owns at their death, including after acquired property. This could even limit what the survivor can do with their own assets!
They also limit the survivor’s ability to change their own will to adapt to changing circumstances or changes in law. Imagine a person unable to change the provisions in their will to take account of the transferable nil rate band, or the residence nil rate band, now left with a will that is less than effective for IHT purposes. Or perhaps unable to direct any assets to trust to protect a child who has become vulnerable.
Mutual wills might look attractive to a person who wants to exercise some control over the destination of their estate even after second death but a Will Writer should advise of the problems this type of will can cause and look for a better solution. IPDI trusts are almost always the better option.
The joint will is a lesser-known type of paired will which most Will Writers could go their entire career without seeing an example of. A joint will is a will for two people, usually a couple, executed within the same document.
Joint wills are almost always mirror wills, and they can be mutual wills but do not have to be. Although executed on the same document a joint will is the separate will of each individual testator. Provided it is not also mutual each of the testators are free to alter or revoke any part of the joint will which relates to them.
On the death of each testator the joint will is admitted to probate as the will of that individual.
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