Clients can often misunderstand the difference between mutual wills and mirror wills, despite them differing in their legal aspects.
When it comes to will writing, 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.
What is a mirror will?
Mirror wills are virtually identical wills where one person in a couple leaves their estate to the other in the event of their passing away. In most cases, one spouse leaves everything to their spouse and then eventually to their children, with both wills outlining this. The result being, that when one of them passes, the other is protected, and upon the second death, the children inherit the assets.
However, issues can arise if the second testator receives the estate of the first testator but then changes his or her will and leaves his or her estate to different beneficiaries, such as a new spouse. In the event that the second testator changes his or her will there is nothing that the disappointed beneficiaries can do.
What is the mutual will?
This is a will that is mutually binding, meaning that after one party dies, the remaining party is bound by the terms of the mutual will. The purpose is often to make sure property passes to one’s children rather than to a new spouse (unlike a mirror will).
When the first of the two testators dies, without having revoked his or her mutual will, the survivor becomes bound by the arrangement. The survivor is still permitted to execute a new will, however the property which was left under the original mutual will becomes subject to a constructive trust and the beneficiaries originally named are entitled to receive it irrespective of what the replacement will says.
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