Making Wills Together
The vast majority of couples who think about making their Wills together, do so at the same time. In most cases, they want to leave their estates to each other on the first death, passing their assets on to their children in a straightforward way.
However, one concern high up most people’s agenda is making sure their assets are protected for their children to inherit should they die first, and their partner chooses to remarry.
Two Documents or One?
Often, in this scenario, a couple opts for simple Mirror Wills. But, it’s essential to know that although a couple’s wishes may be the same, their respective Wills are theirs alone. Equally, other types sound similar, but their legal effects are very different.
Mirror Wills are two separate documents, usually used by couples. As the title suggests, they are broadly identical to and reflect each other.
Neither document is binding on the other person. They may be changed or revoked at any time, including after the death of one person. This flexibility may be useful for those individuals who need to update their Will after divorce or remarriage.
As we’ve already stated, under the terms of a simple Mirror Will, each person can make changes at any time, without the other knowing. Whilst this gives you flexibility, it can also create a problem. For example, Jane leaves her Estate to Bob. Janes dies first. Bob later remarries, has additional children and bypasses his original family, leaving his entire Estate (including Jane’s Estate) to his new family.
At this point, the creation of a Trust can add value. A Trust can give the first to die the peace of mind that their Estate will not bypass those they want to inherit.
A word of warning; everyone’s circumstances are different, and as this area of law can be complicated, getting professional advice is very important.
Like Mirror Wills, Mutual Wills are two separate documents. However, Mutual Wills create a legally binding contract between a couple. By law, neither person can revoke or make changes without the agreement of each other. Furthermore, on the death of the first person, the Mutual Will Agreement becomes permanently irrevocable.
Superficially, creating a binding contract may seem sensible. With a Mutual Will, if either person makes a change without agreement, the courts can legally enforce the original agreement. Furthermore, following the death of the first person, the survivor is bound by their original deal. And they can be sued by the beneficiaries for breach of contract.
Nowadays, Mutual Wills are rare. The fact that each person requires the written agreement of the other to make any change can lead to issues down the line. A Mutual Will can be very restrictive for the surviving spouse/partner. They can’t make changes if their circumstances change. Ultimately, all the beneficiaries need to agree before any changes can be made.
Most practitioners consider joint Wills as outdated. They are single documents signed by multiple people, and deal with each person’s property individually, within the same Will. Unlike a Mutual Will, a Joint Will is not a legally binding contract.
You may be making individual Wills, but you need a joint approach. At the same time, one size rarely fits all. Talk through all your options with your solicitor and consider the consequences carefully.
Our specialist Wills, Trusts and Probate lawyers have many years’ experience in advising clients about making their Wills. For further information, advice or an instant quotation, please contact us. We’re here to help.
Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.