16 January, 2023
A mirror Will is an identical document to the one prepared by your partner. If you make a mirror Will with your partner that leaves everything to them first and then to your children, you almost certainly do so on the assumption that your wishes will be honoured. The objective is to ensure that your children get the estate when your partner dies.
The problem is that a mirror Will does not stop your partner from being able to change their Will after you die. They are free to leave the estate to whomsoever they choose and to disinherit your children or other persons you wanted to benefit.
This is a real problem because family structures are becoming more complex as more of us get married more than once. Blended families are becoming more common. Increasingly, children of the deceased discover that their stepparent has changed their Will to exclude them following the death of their biological parent. This is particularly painful when the assets that make up the Estate of the stepparent were inherited from the biological parent who predeceased them.
The disappointed beneficiaries often consider challenging the validity of their stepparent's Will or making a claim for financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. However, these are not always viable on the evidence.
Another option that a disappointed beneficiary should consider is whether they can establish the existence of a mutual Will agreement between their biological parent and their stepparent to the effect that neither of them will revoke their respective mirror Wills after the death of the first of them to die. The agreement must be binding. It does not have to be in writing, but there must be clear and satisfactory evidence of the agreement.
If the evidence supports the existence of an agreement, your surviving partner will hold your estate on trust for the benefit of the beneficiaries named in the identical mirror Wills. The trust is irrevocable, and your partner's estate will be subject to it even if they have prepared a new Will following your death.
The file of the solicitor that prepared the mirror Wills may make no mention of the mutual agreement that existed between you and your partner. That does not mean that a court cannot be persuaded of the existence of a mutual Will agreement. Evidence can be in the form of written communications within the family or witness testimony recounting discussions with parent and stepparent confirming that they made mirror Wills in the belief that the survivor would not seek to change their Will following the death of the first of them to die.
Forbes offers a fixed fee to investigate and advise upon the merits of a claim to establish a mutual Will agreement or to challenge the validity of a Will. We often act on a no win, no fee agreement particularly in respect of claims under the Inheritance (Provision for Family and Dependants) Act 1975.
For more information contact John Lambe in our Contesting a Will department via email or phone on 01772 220 235. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
Learn more about our Contesting a Will department here