Mirror wills fail to reflect deceased’s wishes

When it comes to writing a will, many couples opt to make mirror wills. These usually involve leaving the entirety of their estate to the surviving spouse, which will eventually pass on to their chosen beneficiaries.

In reality however, the intention behind mirror wills may not always be reflected in the actual events upon death.

One issue which may arise is in relation to provision of care. Subsequent to the death of one partner, the other may require care provision later in life. If mirror wills have been written, it is likely the Local Authority will use most of the assets accumulated by the couple in order to fund the care of the remaining spouse. This power is governed by the Community Care Act and allows the Local Authority to use people’s finances and assets towards any care costs. Where total assets amount to more than £23,250, the individual will be required to fund the care themselves. Savings may be used up rapidly due to the large costs of care, which on average amounts up to £572 per week for a care home.

Local Authorities will provide a partial contribution when assets fall below the threshold of £23,250, and will only cover all care costs if savings deplete to £14,250. As mirror wills usually involve the entirety of an estate being left to a partner, it is likely both shares will go towards care fees, should it be required.

Another issue with mirror wills is certainty, and that ultimately the will may be revoked. Although mirror wills are usually identical, they are still separate documents. Circumstances may change following the death of one spouse, with the original wishes being completely changed by the remaining partner. This may ultimately undermine the initial principle of making the mirror will in the first place.

Similarly, the lack of legal obstruction from making changes to a will means that one party can effectively alter their will even when the other is alive.

Problems may also occur should the surviving partner remarry. Marriage automatically revokes a will unless otherwise stated, thus leading to potential disinheritance for any party originally covered in the mirror will. Instead, the law of intestacy will step in and potentially lead to the new spouse receiving the entirety of the estate upon death as opposed to any children of the first marriage.

Thus prior to drafting a mirror will, consideration of the various potential consequences is advised to be explained to the testators so they are able to make an informed decision as to whether mirror wills are right for their circumstances.

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