Married couples often want to ensure that if one of them dies, the survivor isn’t able to change their will and leave everything to a new spouse or family. But it isn’t that straightforward and often the concepts of mirror wills and mutual wills get confused.
“It’s most common for couples to make mirror wills, which effectively ‘mirror’ their spouses. So, they might each leave everything to each other and on the death of the surviving partner, it all goes to their children. What they may not realise is that the other partner can change their will at any time, including after the first one has died. Some couples want to make a mutual will, which effectively prevents the surviving partner from changing the terms of their will after the death of the first to die. But this causes all manner of problems,” explains private client lawyer Nicola Waldman of London solicitors Hodge Jones & Allen.
Mutual wills bind the surviving partner to the terms agreed at the time the will is made, so if they go on to marry again or even have another family, they may be stuck with provisions that no longer work and don’t take account of their new circumstances. If they do change the terms of their will, when they die, the beneficiaries of the original will may sue to get their inheritance.
Nicola explains: “A surviving partner can of course go on to make a new will, but if it fails to include beneficiaries that would have benefitted from the earlier mutual will, then it is almost certain to be challenged by those left out. This can lead to messy legal wrangling and may mean the courts have to decide how the inheritance is divided. This creates the very uncertainty a mutual will is designed to avoid.”
Mirror wills, on the other hand, might look similar to a mutual will but allow the surviving partner to change their will freely after their spouse has died.
Nicola advises couples to avoid mutual wills because of their inherent uncertainty and suggests that those with concerns examine other options, such as the creation of a trust, which is a far more flexible way to protect the assets of the first of a couple to die so that the capital can be guaranteed to pass to their chosen beneficiaries.
By incorporating flexible trust structures into both individuals’ wills, it is possible to arrange for the assets of the first to die to pass into, say a life interest trust for the surviving partner’s benefit. This would ensure that they had the right to the income generated by any funds as well as to occupation of any property held in trust. The underlying capital would be protected for the benefit of the other partner’s children.