Mirror Wills or Mutual Wills? How Best to Protect your Loved Ones

Deciding as a couple how to care for your children after you’re gone is an important decision. A common way of doing this is to draft separate Wills which “mirror” each other, containing very similar terms which will dispense the same assets to the same beneficiaries.

However, making mirror Wills does not constitute a binding agreement. Everyone has the right to revoke or amend their individual Will at any time, and they do not have to notify anyone else of the change. This can be particularly problematic if you die first, and then your spouse enters into a new relationship with someone else. The assets that were originally planned to be left to your children can become the subject of relationship property, and the surviving partner may change their Will to leave their estate either to their new partner or wholly to the new partner’s children. This means that your own children can be disinherited altogether, unless they decide to bring claims against the estate. This is a costly, lengthy, and stressful process.

In New Zealand law, while a child can claim against their natural parent’s estate if they feel they have been inadequately provided for, they do not have the same rights in relation to a step-parent’s estate unless their step-parent has been regularly maintaining them at the time of their death. This means that if your surviving partner leaves their entire estate to their new spouse, your children may not be able to make a claim against it.

One way to avoid such a scenario is to create a mutual Will. A mutual Will includes clauses which create a legally binding promise by both Will-makers not to revoke their individual Will or make the Will less favourable to certain beneficiaries in the future. A mutual Will can ensure that your own children will be provided for no matter what happens after your death.

Mutual Wills present their own issues. Problems can arise precisely because of the fact that a mutual Will is legally binding. Life circumstances can change, and if a mutual Will is not updated before your partner’s death, you will not be able to change your own Will to reflect such change if it would contravene that agreement. For example, if the mutual Will would dispense some of your assets to a certain person, but your financial situation changes and you find you need to free up those assets to fund your own care or that of your children, you will not be able to remove that person from your Will, and they can make a claim against your estate. That’s why it’s important to contact your lawyer without delay if you wish to change a beneficiary, your financial status changes, or some other significant life event takes place.

Deciding the best way to protect yourself and your family members in the event of the death of you or your partner isn’t always straightforward. It’s important to discuss your wishes with your spouse or partner and seek legal advice to determine what sort of Will is best for you. At Freebairn and Hehir Lawyers, we are highly experienced at all matters relating to estate planning. Freebairn & Hehir Lawyers can provide expert advice to help you with your Will.