Couples often make what are commonly referred to as ‘mirror wills’ : wills that are similar, if not identical, in how their estates should be distributed upon their deaths. However, many people fail to realise that just because the wills have been made at the same time and are deemed to mirror each other, the surviving spouse can of course, exercise his or her testamentary freedom to amend their will after the death of his or her spouse. In other words, mirror wills are not binding on the surviving spouse and do not legally prevent the survivor making a new will, after the death of their spouse, leaving their assets in a, perhaps, very different way to their original will.
In contrast, where ‘mutual wills’ are made by a couple, the parties agree that the surviving testator will be bound by the terms of the mutual wills so that, on the death of the first spouse, the survivor will be prevented from revoking the original will and making a new one. Nowadays, mutual wills are extremely rare as they are deemed to be problematic and often result in contention. They are inflexible and do not allow, for example, for a deterioration of the relationship between the surviving spouse and the intended beneficiaries, a change in circumstances of the said beneficiaries which make the intended gift nonsensical (for example a drug addiction or a large lottery win) or the addition of beneficiaries, i.e. grandchildren who were not born when the original wills were made.
So, how can a couple ensure that the assets of the first to die are protected and distributed in the way that the testator (the person making the will) intended, without utilising the restrictive and often problematic mutual will? The answer is by implementing a trust. This could either be a lifetime trust, where assets are placed into a trust during the settlor’s (the person placing an asset in trust) lifetime or, more commonly, a will trust where, for example, a testator sets up a Life Interest Trust for their share of the family home allowing the survivor to keep living in the property until their own death but ensuring that the testator’s share is subsequently gifted to, for example, his or her children, on the death of the survivor.
In the example above, where mirror wills had been made and a Life Interest Trust had been included for the family home, the survivor could still change their will after the death of their spouse, but the deceased’s share of the family home (often the largest and most significant asset) would be protected and would, in time, be distributed in accordance with the deceased’s wishes.
If you would like to discuss any of the points raised in this article or feel that now is the time to put new wills in place, please do not hesitate to get in touch.
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