Mirror Will or Mutual Will?

Private Client Partner Cara Grant discusses the difference between ‘mirror’ wills and ‘mutual’ wills and the implications for couples making wills.

Partners and spouses often make wills in reciprocal terms so that the ultimate beneficiaries of the joint estate are the same, no matter which partner or spouse dies first.  These wills are called ‘mirror wills’ (or ‘reciprocal wills’).

It is easy for couples who do not wish to include the same beneficiaries to fall in to the trap of leaving everything to each other on the first death, and for the survivor’s will to leave the entire estate to their own beneficiaries.  In these circumstances, the first deceased spouse’s or partner’s beneficiaries are disinherited.  These wills create a ‘roulette wheel’ effect as it depends on which of the couple dies second as to whose beneficiaries ultimately inherit the estate.  ‘Mirror’ wills solve this issue as the same beneficiaries are included in each will, and the estate can be appropriately divided between them following the second death.

‘Mutual wills’ are made by two (or more) people who agree not to revoke them without the consent of the other.  There is, in effect, a contract between the individuals not to revoke or alter the wills.  Problems arise when the first of the couple dies, as the survivor’s will becomes irrevocable.  The survivor can revoke or change their will to appoint different executors, for example, but their estate is held in trust and must be distributed according to the terms of the mutual will.  Such wills can lead to uncertainties and complexities relating to the nature, scope and effect of the trust imposed on the estate of the second to die.  Questions can also arise about what property is affected by the trust, and problems can arise regarding the powers of the survivor to deal with or dispose of jointly owned property, or their own property, after the first death.

When making ‘mirror wills’ it is best practice record that, whilst the wills are ‘mirror’ wills, they are not ‘mutual’ wills, to avoid any possible doubt.  ‘Mirror wills’ can be revoked or updated at any time, particularly following the death of the first spouse or partner.  Whilst questions often arise about how best to avoid the possibility of the surviving spouse or partner disinheriting the first deceased spouse’s or partner’s beneficiaries, it is rarely advisable for ‘mutual wills’ to be made.

If ‘mirror wills’ are not suitable, due to concerns about a surviving spouse or partner disinheriting the first deceased spouse’s or partner’s beneficiaries (whether due to potential family fallout, remarriage, coercion or deterioration in mental health), it is advisable for wills to include trusts, rather than making ‘mutual wills’.  Trusts identify the asset(s) to be held in the trust (for example the first deceased spouse’s or partner’s share of a property) and they set out the precise terms of the trust so that it is clear what rights the surviving partner or spouse has, and when the ultimate beneficiaries are to inherit.  This removes the ambiguity and uncertainty which is created by ‘mutual wills’.

Using the wrong wording in a will or creating the wrong kind of will can have devastating consequences and we strongly recommend using a specialist ‘Private Client’ solicitor to prepare your will, and to review it every few years to ensure it’s up to date.

Contact Cara or any of our other specialist solicitors to discuss any of the issues raised above, or to discuss your will and estate planning generally:

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