What is a mirror will?

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What is a mirror will?

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Mirror wills are when a husband, wife or registered civil partner make almost identical wills leaving everything to each other or, if they both die together, to their children should they have any.

Mirror wills allow a couple to specify those people they both trust to be their executors to deal with their estate when they die as well as appointing guardians they'd both prefer to look after any children in the event that the testators (those making the respective wills) die together. A mirror will also enables the partners to state who they both wish to benefit from specific possessions or gifts and who should otherwise benefit from their individual estate.

Mirror will or joint will?

Mirror wills may also sometimes be referred to as 'joint wills', implying that there is single legal document covering all the testators involved. It is a common misconception that a married couple (or registered civil partners) can make one will to cover both of them if their wishes are nearly the same. This is sometimes referred to as making a 'joint will'. Despite what Wikipedia may tell you, there is no such thing. A will is always an individual legal document and applies to the individual testator alone.

Mirror or mutual will?

Mirror wills may also be similarly confused with mutual wills as the contents and provisions of mutual wills also 'mirror' each other. However, mutual wills differ from mirror wills in that they are a rigid, legally binding and enforceable contractual agreement. Mirror wills are not. Each party to a mirror will fully accepts the right of the survivor to change his or her will as and when they see fit. Mutual wills do not afford either party that option since doing so would be illegal. The only preventative sanction anyone drafting a mirror will has is the hope that neither party will choose to change or revoke their will before they die.

Key elements of a mirror will

The key element of a mirror will is that testators generally agree what they want to happen in the event of their death and express those shared desires in nearly identical terms in their own respective wills. Obviously, it's easier if mirror wills are drafted at the same time, but it's not absolutely essential to do so. Both mirror wills needn't slavishly follow exactly the same wording and the wills don't have to mirror each other entirely. They should however mirror each other fairly precisely in terms of both testator's mutually agreed wishes in all the important areas relating to estate administration and inheritance issues. Mirror wills can still be drafted even with minor differences in both, but if those differences are substantial (e.g. disagreements about who should be appointed executors or guardians or who should be beneficiaries) it's much better to write two separate wills that take those differences into account rather than try to accommodate them in a pair of mirror wills.

The importance of appointing extra executors

Usually, both testators involved in drafting mirror wills become both sole beneficiary (if there are no children) and sole executor to each other in their respective wills. It is highly advisable however to add at least one extra executor and beneficiary (which can be the same person) to each will to safeguard the estate in the event that both testators die together. Naming different guardians however could lead to problems and should be given considerable thought by both testators, otherwise two separate wills drafted to take those differences into consideration may be the better option.

Inheritance tax advantages

Everything passing from one spouse to another is tax free. Bequeathing the maximum amount available to someone in a will in the days when a person's Nil Rate Inheritance Tax allowance died with them and was not transferable is not necessary today. The Nil Rate band is transferable to the surviving spouse. Therefore, in mirror wills, on the first death, the Inheritance Tax allowance of the deceased passes to the surviving partner. That is then added to their allowance in the event of their death. So as long as the joint estate is valued at less than double the present IHT Nil Rate band of £325,000 there will be no inheritance tax to pay on the second death.

Revocability

It is very common for couples to make wills in identical terms but that doesn't make them mirror wills. Each party to a mirror will fully accepts the right of the survivor to revoke - change his or her will. Without any real legal sanction available if that is the case, they simply have to trust that it doesn't happen. Mirror wills therefore work so long as both testators are certain that they'll always share opinions and never change their minds. If circumstances change and the wills need to be updated, both documents must be changed. Even with a standard will, there are some consequences if you don't live up to commitments made, especially if you'd given a verbal or written promise to someone assuring them that they'll inherit property or land. If they acted and relied on that promise, they can use the challenge of proprietary estoppel to have that promise honoured if it's revoked or not mentioned in your will.

Drawbacks of mirror wills

Mirror wills do help to ensure that inheritance and estate administration issues are clear and as straightforward as possible, provided both testators stick to the mutual understanding or moral obligation that underpins mirror wills for the rest of their lives. However, the fact that mirror wills leave absolutely everything to the other partner doesn't help when it comes to planning against possible local authority assessment for the payment of care home fees (an increasingly important consideration in any will) as the value of the whole property will be taken into account. Other options, such as the testators writing individual wills, holding the property as joint tenants and instigating Trusts may be more cost effective and ultimately more beneficial than the seemingly obvious route of drafting mirror wills if concern about funding care in old age is a mutual priority.

The only other practical point to be wary of in mirror wills is to be certain that you are signing your copy. Normally, any will is signed and witnessed on the last page of the document. There have been instances where both the testators and their solicitor are unaware that one party (whether a spouse or partner) is in fact signing the wrong will – i.e. the other partner's document. Differences are difficult to spot in the text since by definition a mirror will repeats provisions and narrative across both documents. If a mirror will is signed by the wrong spouse it has previously been refused probate, however the Supreme Court has granted permission to appeal against the decision in Marley v Rawlings and another [2012] EWCA Civ 61 in order to decide conclusively whether the English courts have power to admit to probate a mirror will signed by the wrong spouse.

Want more help?

Talk to us about the issues surrounding mirror wills and whether setting up a trust would be a better option for you. Give us a call for a no obligation chat on 03700 868 686 or contact us online. We can talk you through the options and whether we think that drafting a mirror will would be the right way forward for your unique circumstances.

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