Mirror Wills and Mutual Wills: How to Protect your Blended Family
One of the questions I often get asked by clients with blended families is “If I die first, can my spouse change her/his Will after my death?”
The answer is “it depends.” Anyone is able to change their personal will, but many partners choose to create mirror wills and mutual wills to ensure their estates will be divided in the same way.
If spouses have mirror wills, any spouse can change his or her will any time, but if the spouses have mutual wills then there is an agreement between the spouses not to change their wills. If spouses have mutual wills, there are remedies which frustrated beneficiaries can pursue to effectively undo any changes a surviving spouse may make.
Mirror wills (sometimes called reciprocal wills) are wills made by two individuals, often spouses, which contain similar complementary terms. Most typically each mirror will provides that upon the death of each spouse, the deceased’s spouses property goes to the surviving spouse, or if the other spouse is not then living, then to the children. In such circumstances, each spouse is free to change his or her will any time before or after the death of the other spouse.
Mutual wills are mirror wills made by two individuals, often spouses, together with an agreement between the two individuals not to revoke their respective Wills. For mutual wills to exist there has to be a clear, binding agreement between the individuals not to revoke their respective Wills. This agreement does not have to be in writing, but is very difficult to prove if it is not. That is why the agreement not to revoke wills should be properly and clearly set out and in writing and referred to in each mutual will.
Mutual wills can be useful, for example, in situations of blended families when spouses have children from previous relationships. A mutual will would, for example, preclude one of the spouses after the death of the other spouse from changing his or her Will to exclude the deceased’s spouses children.
The benefit of Mutual Wills is that they cannot be changed after the death of spouse but this can also be a burden. Sometimes, the surviving spouse’s circumstances change after the death of a spouse – there may be new children born or a new relationship might begin, and Mutual Wills do not allow for changes to the surviving spouse’s Will to reflect their new circumstances.
The use of mutual wills can be a useful tool in the appropriate circumstances but needs to be carefully considered and carefully prepared. If you are considering entering into a mutual will arrangement, please contact your lawyer.
The purpose of this article is to provide the reader with general information and to encourage the reader to obtain specific and updated legal advice that applies to the reader’s situation. Nothing herein is intended to be legal, tax or financial advice. If you have specific legal questions please contact Adam Altmid.