It is quite common for partners to make ‘mirror Wills’. This is when you and your partner make Wills with identical (or very similar) terms, and usually provide that the first of you to die will leave everything to the survivor, and then the survivor will leave everything to your kids.
Most people think that this means their ‘family’s assets’ will eventually end up in the hands of their children. Unfortunately, this is not necessarily the case. Another thing that people assume is that their partner will not be able to change their Will before or after they die. Once again, this is not the case.
Put simply, just because you and your partner make mirror Wills does not mean that your partner cannot change their Will (either before or after you die). Furthermore, your partner does not have an obligation to inform you if they do change their Will.
On top of this, if after you die your partner re-marries (or even re-partners), their new partner is likely to have some claim over some or all of their assets. The likely outcome is that at least some portion of your assets will not end up in the hands of your children.
So don’t confuse ‘mirror Wills’ with a promise from your partner not to change their Will.
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If you and your partner want to agree not to change your Wills, then you need to agree on this explicitly.
Some lawyers suggest that you put this ‘agreement’ into your respective Wills. We don’t like this approach for a number of reasons. The main one is that it is questionable whether a Will made by one person can constitute a contract with another person, (who is not a ‘party’ to your Will). At best, the terms in each Will may evidence of a verbal ‘contract’ when the Wills are viewed together and in the context of each person’s conduct – but this is a complex legal arrangement that can be fraught with evidentiary issues.
We prefer to record your agreement in a separate document, which is often referred to as a ‘Deed of Mutual Wills’. This document is separate from your Wills, and records your agreement that each of you have made your Will on the expectation (and in consideration) for your respective promises:
- Not to change your Will during your lifetime, without first notifying the other person (who can then change their Will); and
- Not to change your Will after one of you has died, without the consent of your children (or the other people you have agreed will benefit from your combined estates).
Some lawyers don’t like the concept of a Deed of Mutual Wills. We agree that they are a very powerful document, with potentially long-lasting consequences. But in our view, this is exactly what is required in order to ensure your assets end up where you intend, and not in the hands of someone you may not have met yet. It is also true that these documents need to be drafted very carefully, to take into account a number of potential future outcomes.
That said, we believe that not putting one of these agreements in place, when the circumstances clearly call for it, can itself give rise to devastating (and unintended) consequences, that can tear otherwise close families apart.