What is a Mirror Will? Will it really put my assets at risk?

Mirror Wills family

In this article I explain Mirror Wills and consider whether they are really something that should be avoided.

Mirror wills are Wills that couples make on practically identical terms. You might sometimes hear them referred to as ‘Joint Wills’. The fact that the Wills mirror each other is not actually a problem. The issue arises from the typical Mirror Will structure: each spouse leaves everything to the other, and then the children.

When making this type of Will, both parties are usually quite certain that their children will end up inheriting one day. But there are numerous problems with this arrangement. The survivor inherits everything – so that the whole of the family’s wealth is exposed to a range of threats. For example, the survivor may:

  • Change their Will and disinherit one of more of the children
  • Fall into financial difficulty
  • Spend a large portion of the money unwisely
  • Use most of the assets to pay for care
  • Remarry, then either be the first-to-die in their new relationship or go through a divorce

All of these threats can use up everything the couple has worked so hard to acquire, so that the children and grandchildren inherit nothing. Worst still, with remarriage or a later divorce, someone else’s children can end up with the family’s inheritance.

Protecting assets for future generations

I am often asked, “Can you change a Mirror Will after one person dies?” The answer is, yes, usually. You and your spouse are completely free to change your Will at any time up until your deaths, provided that the person who wants to change their Will has the required ‘testamentary capacity‘. If you and your spouse have made Mirror Wills, one of you can even go and make a different Will without telling the other. Further, once one of you dies, the survivor can still change their Will as often as they please. So how is it possible to have any control at all over where your assets end up? The answer is to use trusts.

You do not have to leave your property outright to your spouse. Instead, the property (which might include your share of the family home, buy-to-let properties, cash and investments) can be placed in a trust so that the survivor only has use of it for life. They may continue to live in the family home or benefit from investment income, but the asset itself is safe.

The survivor does of course have their own share of the family home and their own cash and investments. Their ‘pot’ is still exposed to the risks mentioned above. However, by using trusts, a substantial part of the family wealth has been preserved for future generations.

You can find out more about protecting the family wealth for future generations in my guide to Bloodline Wills.

There’s nothing wrong with Mirror Wills

To be clear, then, there is absolutely nothing wrong with the fact that Wills mirror each other. If I were to draft the Will described above which gives the survivor the right to use the first-to-die’s assets for life, undoubtedly each Will would ‘mirror’ the other (i.e. your Will would be on very similar terms to that of your spouse). This causes no issues whatsoever.

It is the ‘everything to each other, then the children’ structure that must be avoided. Strangely, many solicitors’ firms and other legal service providers still offer this type of Will routinely.

Take care not to make a Mutual Will

Whilst it is usually possible to change a Mirror Will at any point, this is not always the case. If you and your spouse make a promise to each other not to change your Wills, this may be regarded as a ‘Mutual Will’.

In the very old case of Dufour v Periera, the court confirmed that if a couple have made Mutual Wills, these can be revoked during the lifetime of the parties if a notice to revoke is provided. However, if one dies, the Survivor cannot revoke their Will.

At first glance, this might seem to solve the problem of control. Surely the spouses binding each other to their promise to leave inheritance as planned is desirable? The answer is, definitely not! Life has many twists and turns, and circumstances change. What if, after the first death, one of the prospective beneficiaries finds themselves bankrupt or on benefits? What if another prospective beneficiary finds themselves going through a protracted divorce where their ex-partner intends to ‘take them for every penny’? Or what if one of the children becomes extremely wealthy, whilst another falls on extreme hardship? With a mutual Will, the survivor would be bound to respect whatever arrangement was agreed, before these circumstances existed. The family’s wealth could end up in the pockets of creditors or with a child’s ex-spouse.

Mutual Wills are completely inflexible. Once the first person dies, there is no possibility of change. It is much more sensible for the first-to-die to use trusts to protect their share, leaving the survivor to change their Will in response to changing circumstances. Take care not to enter into such an arrangement by accident – in Legg and another v Burton and others [2017], the fact that the couple made Mirror Wills and simply made it very clear that they did not want to change them was sufficient for the High Court to find that the Wills were in fact Mutual Wills (despite their solicitor explaining to them that the Wills were not “set in stone”).

References to ‘spouse’ in this article also include ‘civil partner’.

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