Smoke and mirrors
We recommend that you don't make mirror wills and mutual wills. We hope that by the time you have read this article you will understand why.
Mirror wills are very different animals from mutual wills. The only feature they have in common is that two people are considering the words, not one person. It is possible in theory to create two wills in a single document but this would cause untold complications that we shall not discuss here.
Mirror wills have been promoted over the last 50 or more years because they provide a respectable and professional way to offer 'two for the price of one' without sounding like a supermarket offer.
It takes very little time to edit a draft will to provide a second one for the other spouse or partner. (From here we will refer to all states of marriage and living together as 'partners'). So the draftsman doubles their profit and the client has a bargain.
Fairness
One of the factors motivating your choice of having mirror wills is fairness between you. But the effect may be that one of you controls the other.
There is no benefit nor reason why two people should have identical wills, any more than why they should wear the same colour clothes or drive identical cars.
Assuming that you live together in perfect harmony and happiness, we believe you should be free to make different provisions in your wills. Each of you will have your own family, own special interests, own personal possessions.
A mirror will can only generalise both your wishes
You can only leave that which you own as a gift in your will. Accordingly, mirror wills have to be fairly general and not specific to particular assets. This isn't a problem if your assets are almost the same as those of your partner, but in practice we all have our own possessions of different value (either financial or sentimental).
What you should consider is not only whether your partner is the best person to take on the ownership and management of the holiday house in Turkey, but also whether you are the best person to receive the share in their family company. As examples, both may have high values, but they both also have responsibilities attached to them.
Another problem is that assets that require active management generally tend to depreciate in value if they are not managed. If your partner cannot manage the asset, you may be reducing the value of your estate by passing it to them.
A mirror will gives no flexibility as to how such assets should be best maintained.
Times change
The way you run your lives and your 'togetherness' will change. What was good today may not suit tomorrow. That particularly applies when one of you dies.
There is nothing to stop one or the other of you from changing your will at any time, and no law that you must be told about anyone else's will. Your partner may change their will during your lifetime and not tell you, or they might change it on your death.
Although you can agree now as to what you would like to happen, with mirror wills, you cannot force your partner to keep to their word.
It is common that a couple agree that assets are to pass to each other, and on the death of the second to pass to someone else (such as children). It is also common that the last to die makes a new will before his or her death that changes that arrangement.
One compromise is to make similar wills, not identical ones
Because the future is unknown, you can make only limited plans. By all means make similar wills. Leave your house to the other. Leave the residue of your estate to the other. But surely it is right that you should not have to make exactly the same gifts and arrangements.
The philosophy we advise is to discuss your wills together openly. Be totally honest as to your intentions, then each go away and make your own will. Most people do this and most couples leave the bulk of their estate to partner and children.
However, arrangements for your children should most certainly be agreed. But this is not just in relation to your wills. As we have shown, if one of you dies, the survivor can make a new will, changing everything. So the names of guardians, for example, should be agreed as a matter of life management rather than after-life planning.
Draw a will that reflects your wishes
You do not have to look for a bargain. You can download a professional drawn, suitably flexible will from Net Lawman absolutely free. Each of you can complete it as you decide, whether or not you draw up mirror wills.
Mutual wills
A mutual will is one where both partners contractually agree to the terms of their wills. What they agree to may in fact be mirror wills, or they may be quite different.
In most cases one of the partners has some need for certainty and the other of them agrees to go along with the proposals. It has been rare for two people both to have a requirement for mutual wills.
A will and a contract not to change that will
The essence of mutual wills are that each will is a two-in-one document. It is a will and it is also a contract not to change that will.
Although very few mutual wills are made each year, they are the subject matter of a disproportionately large number of legal cases that end up before a judge.
Cases in the last twenty years have crystalised four specific requirements for a mutual will to be enforceable, as follows:
- The agreement must be made in a particular form.
- The agreement must be binding and contractual. (Contrast Re Goodchild [1996] 1 WLR and Lewis v Cotton [2001] 2 NZLR)
- The agreement must be intended to be irrevocable.
- The surviving party must have intended the will to reflect the agreement.
Briefly, there must be a binding, irrevocable agreement, intended by both parties to last through the lives of both of them. Of course, that means the survivor is bound to comply with what they have agreed for their entire life. Consider what a burden this could be, with all the unknown changes that could take place in the remaining life of the survivor.
Historically, mutual wills were used to ensure that property passed to children of the marriage rather than a widow or widower's spouse on a remarriage. Today we would use the device of a life interest in trust to achieve this purpose and take the risk that the other party might change their will.
The freedom to dispose of your property (after sharing with HM Revenue and Customs) is a basic democratic freedom. Accordingly, any attempt to interfere with or reduce that freedom is regarded by judges as something requiring strict compliance with the established principles and certainty that the testator knew what he was doing when they made the will.
Further information
We recommend that you read about signing your will correctly and the process of attestation next.
We believe that every adult should make a will. So as to encourage you to do so, we provide some of our more straightforward wills (likely to be suitable for most people) absolutely free with no catches or conditions. Just visit our library and choose the most suitable from our library of will templates. We offer nine in total that together cover thousands of possible variations of wishes. There will be one to suit your situation. If you are in doubt as to which to choose, this article about where to start when writing your will should help you to decide exactly which one suits you best.