Should you avoid making a Mirror Will?

Did you know that over 54% of adults in the United Kingdom do not have a will, or that 5.4 million people have absolutely no idea how to make a will? This surprising data from Which¹ is enough to stop you in your tracks and make you think seriously about whether you should not only make a will if you have not, but also whether you have the right type of will if you have made one. 

In today’s society where we go on recommendations and word of mouth from friends and family, we can often forget that what may suit one person, may not suit another, especially when it comes to making a will.

So, let us take a look at one particular type of will that married couples can make, and discover whether it is really as reasonable or appropriate as some may have made it out to be. Here we are referring to the ‘mirror will’.

What is a Mirror Will?

A mirror will is a will made by each individual of a married couple that is identical to that of their partner. The will is made on the basis that when one of the two people die, their entire estate (all their money and possessions) will be left to their partner and, on the subsequent death of their partner, their estate will be passed down to their children and grandchildren. It is that simple. 

So, if you are a man and in your will, you state that “On my death, I request that my estate be passed to my wife, and if she dies before me, then I would like my estate to be shared equally among my children.” 

Then the mirror will of your wife will say: “On my death, I request that my estate be passed to my husband, and if he dies before me, then I would like my estate to be shared equally among my children.”

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Common mistaken belief with Mirror Wills

One of the biggest misconceptions concerning a mirror will is that it ensures that any children, or resultant grandchildren, will receive the entire estate of both you and your wife or husband once you have both died. This, simply, is not the case, as we will explain below.

Why a Mirror Will can be so ineffective?

You are now in for a bit of a surprise as you discover the multiple ways your children may not receive the bulk of your estate from a mirror will.

• Your wife or husband can change their will without informing you, which means that if they inherit your estate, there is no guarantee that they will then leave everything to your children. They may decide to leave all the money to charity, and there is nothing your children can do about that.
• When you die, your wife or husband may remarry and have children with their new partner. It is likely that once your wife or husband has remarried, they may well change their will in such a way to benefit their new partner. Your estate may end up going to his or her children as well as your own.
• If the surviving partner lives for many further years, if they are retired but have only a state pension to live off, much of what you have left will become eroded purely through your partner having a reasonable standard of living in their later years.
• In leaving all your estate to your husband and wife, it is implied and assumed they would be respectful of your wishes. Also, to try to ensure that as much of your estate will get passed on to your children. However, there is nothing in the law that will forbid your husband or wife from going on a spending spree!
• You would want your husband or wife to live on for many years after your death, and that those years are spent in good health. However, for many, that is not the case. While they may live for many further years, a number of those years could be spent in a nursing home. If your wife or partner does not have sufficient private income to pay the nursing home fees, once any savings have run out, the local authority, acting under the power of the 1993 Community Care Act, will then put a charge on the property where the nursing home resident lived, and when it is sold, the local authority has to be paid back out of any sale proceeds. According to the Act, if your total assets (including your home) amount to a value greater than £23,250 (£26,250 in Scotland or £24,000 in Wales), the local authority will demand you pay all fees for your care.

As you can see, while you may feel that you have done the right thing to protect the future of your husband or wife, and your children, the truth is that you have not. So, what is the solution?

Can a Mirror Will be replaced after death?

As explained above, Mirror Will can be changed; and of course, after death. You may decide to set aside some money in your estate to take care of older relatives. Maybe one of your children will ask to take away their inheritance money as a deposit for the house. In this case, you can make a new wish to replace the old mirror will. Hence, the will can be changed before or after death. Hence, if you want to make a will that cannot be changed, you need to make something called a mutual will or consider a trust will.

The Trust Will

You do not have to leave your entire estate to your husband or wife to ensure their security after your death. Instead, you can create a Trust Will which will ensure that on the subsequent death of your husband or wife, your children will receive at least 50% of the sale proceeds from the sale of the family home.

How to make a Trust Will?

When you make your will, first you have to ensure that you and your husband or wife own your home as Tenants in Common as opposed to Joint Tenants. As Tenants in Common, the law recognises that each of you owns a 50% share of your property. This means that you can choose what you do with your 50% share. If you are Joint Tenants, that means that you jointly own a 100% indivisible share of the property such that when one of you dies, the other automatically becomes the owner of 100% of the property and neither of you can change that. If you are Joint Tenants, you can now see that a Trust Will is inappropriate and ineffective.

Once you own the marital home, and any other property, as Tenants in Common, you can leave your 50% share to your children which, on your death and if your husband or wife survives you, means the following:

• Your husband or wife can remain in the property until their death
• On the death of your husband or wife, your 50% share of the property will go to your children, irrespective of what your husband or wife has chosen to do with their 50% share
• Of great importance, your 50% share of the property is safely ‘ring-fenced’ and cannot be seized by the local authority to pay nursing home fees. 

Key Takeaway

Of course, this is a relatively simplistic approach to making the right will, but there are many additional factors which should be taken into consideration, such as tax and death duty mitigation, which is why it will always pay, in the long term, to use the services of a firm of solicitors who specialise in will making. 

Whether you want to make a will or would simply like to check that your current will is capable of achieving what you intend, please contact a will solicitor and they will be happy to give you the advice you need.

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