2010 - 2017
Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.
A lot of married couples appear to be under the impression that they require one will between them. The reality is that husband and wife must each sign a separate will.
In most instances they will sign mirror wills, i.e. wills in identical terms. The most basic form of this is the typical scenario of: 'I give everything to my wife but if she has died before me I give everything to my children.
Wills which are made in mirror form are not binding on the survivor who may change his or her will at any time. In second marriage scenarios many people draw up wills providing that if they have survived their spouse their estate is to be divided between their children and their spouse's children.
The problem then is that there is nothing to stop them changing their will when their spouse is dead so as to remove their spouse's children from the equation.
Mutual wills are a different class of will from mirror wills. They may well be written in identical terms but, unlike mirror wills, they are intended to be binding on both parties. The law's requirement for mutual wills to be binding is very strict: there must be clear evidence of intention.
Professionally drawn mutual wills contain a statement to the effect that they are intended to be irrevocable following the first death. Up until one of them dies the couple may change their wills as often as they wish.
As soon as one dies, a trust arises which binds the survivor to comply with the terms. In reality, the , survivor cannot be stopped from drawing up a new will if he or she wishes but will be bound by the terms of the trust; gifts incompatible with the original trust cannot be made so as to deprive the original beneficiaries of their inheritance.
The biggest drawback with mutual wills is their inflexibility. Circumstances may change between the two deaths so as to render changes in testamentary dispositions desirable. Tax rules may change and necessitate a reworking of the original scheme.
If you are worried about protecting your children from the possible actions of your second spouse, a life interest trust in your will is a far better way than relying on the drawing up of mutual wills.