Where will writing is concerned, many couples believe that only a single will is required between the both of them. The reality is however, that everyone who chooses to make a will must sign one separately, including spouses.
Mirror wills and mutual wills are often confused, despite differing in the legal concepts they consist of, as well as the consequences they have for the concerned parties. The only feature they share is that, instead of one person considering the wills’ content, there are two.
Mirror wills
Mirror wills contain identical terms and are most commonly signed by couples who have similar wishes on what happens regarding their estate distribution. Both spouses for example may leave everything to their surviving spouse or children.
For drafting purposes, due to the similarity between the wills, editing the original version will often be much quicker than drawing up a new will entirely. Thus, mirror wills may largely appeal to couples looking for a faster and potentially cheaper means of consolidating their asset distribution.
Although appearing simpler, mirror wills are also the subject of contention. The complications which may result following execution may outweigh the initial benefits for couples and others who choose to use them.
Fairness
For many, the purpose of creating mirror wills may be to ensure fairness between the parties. However, if a couple are harmonious and open with each other anyway, the requirement for mirror wills seems to lessen. Also, the intention of fairness may actually result in one party simply adhering to the wishes of the other, due to the way in which mirror wills are structured. This structural condition may lead to problems in itself.
Generalisation and responsibility
Mirror wills have to be fairly general in nature as opposed to specifically relating to particular assets. For those who have reasonably similar assets to the other relevant party, this may be less of a problem. However, financial and sentimental value placed on possessions can differ greatly and true symmetry of party wishes is unlikely.
Also, practical management may be required in relation to some assets – such as company shares – and thus a responsibility for the surviving spouse. Assets such as these are likely to lessen in value if their management is neglected and thus cause a reduction of the estate’s worth if the partner is unable to tend to them.
Changes
Following the writing of a will, circumstances and wishes are likely to change, especially where couples are concerned.
There is no legal obligation to be notified about anyone else’s will, and nothing which obstructs a party from making changes to a will. Thus, whether it occurs upon the death of one spouse or when both are alive, a party is able to alter their original will and simply not tell the other.
Mirror wills cannot force parties to keep to their initial word and thus many commonly make changes to their will, following a partner’s death.
Mutual wills
Differing to mirror wills, mutual wills create an agreement which is binding between the parties so the surviving partner is legally unable to make changes to the will and distribute their estate differently.
Binding
Although rare, mutual wills may be used where a need for certainty is required by one party. There must be evidence for binding intention between the parties, indicating that their wills cannot be revoked unilaterally, as well as that their estate is to be distributed in a specific way.
Each document is effectively both a will as well as a binding contract not to revoke that will. However, the doctrine which mutual wills are based on is actually a legal fiction.
Everyone is effectively able to revoke their will, regardless of its specific type. For mutual wills however, any alterations made would neutralise, as in effect the law creates a trust over the survivor’s assets. Regardless of changes made, the binding intention between parties means the law of equity steps in and puts an obligation on the surviving party to give effect to the initial will agreement. Considering the binding nature that the will has upon the survivor, the degree of proof – that parties intended to make the agreement – is high. The evidence required by the courts not to revoke the will must be “clear and satisfactory” as well as “certain and unequivocal”.
Inflexibility
Despite this high threshold to ensure agreement of the parties, the weight of the decision made is still heavy. The survivor is naturally required to comply with the agreement for the remainder of their life, meaning there is great possibility for upset should life circumstances or wishes change. Although they are able to draw up a new will should they wish, they will still be bound by the terms of the trust.
Historically, mutual wills were drawn up to ensure property was passed on to children following a remarriage. This circumstance can now be covered by creating a life interest trust in a will which may provide a more flexible alternative than relying upon a mutual will.
