If you have in place, or you and your partner are contemplating putting in place, what’s known as a mirror Will, you may still wonder whether your wishes will be honoured upon your death.
What if your partner remarries? What if they change their mind at a later date and decide to leave your legacy to someone other than your children?
Here we look at the risks involved when making a mirror Will.
What is a mirror Will?
A mirror Will, or a bloodline Will as it is otherwise known, is a Last Will and Testament that leaves everything to your partner when you pass away. It also means that everything will be left to your children on your partner's death – and vice versa if your partner or spouse passes away before you.
In other words, you both have identical documents with exactly the same stipulation that when one dies the estate will pass to the surviving partner, with your children to inherit on the death of that remaining partner.
This could be to make financial provision for children that you had together, or as is very often the case in a modern society full of blended families, for children from previous relationships.
Is a mirror Will binding?
Needless to say, most people enter into mirror Wills with the expectation that they have some certainty as to who will inherit their estate. It creates a belief that not only have they protected the interests of their partner, by naming them as the main beneficiary, but that their children will still benefit financially at some point in the future.
Accordingly, the ability to change the provisions of a mirror Will without the other partner’s permission – either while you are both still alive or following the death of one partner – would seem to undermine its’ entire premise. Yet, legally speaking, this is entirely possible and, moreover, it is a possibility that many people are simply oblivious to.
The sad fact is that a surviving partner will usually be well within their legal rights to rewrite the terms of their mirror Will, in many cases disinheriting the children of the deceased and leaving everything to someone entirely different.
Although a couple’s wishes may be identical, their respective Wills are theirs alone and either party is free to change their Will at any time. Mirror Wills are simply two separate Wills that reflect each other’s intent, but with nothing that ties the two together legally. There is no legal obligation to keep the mirror Will unchanged, notwithstanding the fact that it was entered into at the same time on the same terms as your partners’ Will.
Why are mirror Wills recommended?
Given the inherent risks involved when making a mirror Will, this begs the questions why they are recommended. The short answer is that they are extremely cost-effective. As they are essentially the same document, couples can typically get a discounted rate to have these documents drafted when compared against the cost of drawing up two individual Wills.
Indeed, mirror Wills are not only a good way to save money but also a good way of expressing your wishes as to who you would like to eventually benefit from your estate after you both die. However, this does not necessarily offer any guarantees that your partner will honour those wishes.
This could be significant particularly if, after your death, your partner re-marries or has more children with someone else, or where you both have children from previous marriages and your partner decided to disinherit your biological children, passing on your hard-earned assets to their own biological children.
Can a mirror Will ever be set in stone?
There are some circumstances, albeit limited, that a mirror Will can be held to be binding. Indeed, the High Court ruled in the case of Legg and another v Burton and others [2017] EWHC 2088 that the Will in question was binding on the wife, and could not be subsequently amended. The intention had been clearly expressed from the outset that the mirror Wills were ‘set in stone'.
Although this decision turned on its facts, it does show that mirror Wills can be binding depending on the promises made at the time of making and signing the Wills. In this case, two daughters – to whom the deceased father had intended his estate to pass to following his wife’s death – had been present when the mirror Wills were signed and had been assured by both their parents that their terms would not be changed at a later date.
In upholding the daughters' arguments, the High Court accepted their evidence as to the mutual promise their parents had made to each other and to them. As such, on her husband's death, the wife lost the unilateral right to dispose of her estate as she pleased. On the facts of the case, the mirror Will was therefore found to be a contractually binding mutual Will.
What precautions can I take to protect my estate?
Clearly, given the inherent risks involved in making any Will, it is always best to seek expert legal advice to ensure that your estate is left to those that you love, and to minimise the risk of your legacy being left to someone else. This can be easily done, for example, by two partner’s leaving each other a life interest in their respective estates that would then pass onto their children after the death of the second partner.
It is also important to remember that to die intestate, i.e., without any Will at all, can create all sorts of other difficulties. Accordingly, it is always best to have a Will in place to ensure that, at the very least, the laws of intestacy do not determine who gets what after you’re gone.
Contact Our Wills and Probate Solicitors, London
Lewis Nedas' Wills and Probate Lawyers have the knowledge and experience to advise you about the preparation of your Will and Last Testament, no matter what your circumstances or family structure.
We will provide tailored advice, helping you to make informed choices when deciding on what financial provisions to make for your loved ones. Our lawyers are also able to offer expert legal advice where a Will has unfortunately become the subject of a dispute.
For further information please contact us on 020 7387 2032 or complete our online enquiry form.
