When a married couple decide to update their wills it’s a common practice for them to enter into what is termed as a ‘mirror will’. This type of will provides that their entire estate will go to their spouse when they die and then when their spouse subsequently dies, the entire estate will go to the couple’s children.
Structuring a will like this makes a lot of sense. You always want your spouse to be provided for following your death and then for your children to be looked after following your spouse’s death. However there are can be a problem with these ‘mirror wills’ and it’s often overlooked.
What happens if your spouse gets into another relationship following your death and decides to change their will? Will your children still be looked after?
The recent case of Haggerty v Wood [2013] highlighted this issue. In this case the deceased had executed a ‘mirror will’ with her husband, which left the couple’s entire estate to each other first and following the death of both of them, to their children in equal shares. However, following the death of his wife, the husband entered into a new relationship and during the course of this new relationship he prepared a new will, which left his entire estate to his new partner and nothing to the children of his previous relationship.
Following his death a claim was commenced by his son from the first relationship seeking a declaration from the Court to enforce the original wills made during his first relationship, as the son believed the estate of his parents was to go equally to him and his sibling, following the death of both of their parents, as was stipulated in the original will.
In this case though the court struck out his claim, as it found that no agreement existed between the deceased and his first wife not to change or revoke the ‘mirror wills’ they prepared as a couple.
In an instance such as this there are alternative avenues available to children, such as making a family provision application, however there are strict timing and eligibility issues, which need to be satisfied. It can also be an expensive and drawn out process that is best avoided.
Therefore it’s worth remembering that while ‘mirror wills’ often make a lot of sense, if you intend on protecting the interests of your children after you pass away then you should ask your lawyer to insert special provisions into the will to protect their interests.