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It is common for couples to make what are called ‘mirror wills’ – in which both wills contain essentially the same clauses. These wills are often in the form of ‘all to other’, whereby the whole of the estate of the first to die passes to the survivor. Sometimes, such wills also contain specific legacies, with the remainder of the estate passing to the surviving partner.
Normally, there are no complications. However, the creation of a mirror will does not bind the survivor in any way. Issues can therefore arise where the surviving partner goes on to change their will. For example, if a surviving spouse subsequently remarries and executes a new will leaving his or her estate to their new partner, any children of the earlier marriage may be disinherited.
One solution to this problem is to create ‘mutual wills’. A mutual will is one which effectively binds the survivor by creating a ‘constructive trust’ over all or some of the assets in the combined estates. This prevents the survivor from disposing of them by changing his or her will.
However, a better result can often be achieved by setting up a trust under the will, into which assets can be placed on the first death. This can be an effective means of ensuring that assets are not dissipated and eventually pass to the appropriate beneficiaries. Trusts can also be used for Inheritance Tax mitigation.
Clearly, achieving the best result depends on individual family circumstances and all the available options should be carefully considered. We can advise you on what these are and their consequences.