Often, an individual makes a simple Will that is, for the most part, identical to that of their partner or spouse; a Mirror Will. On other occasions, they may consider making a Will each, which forms a binding contract between them; a Mutual Will.
What is a Mirror Will?
Mirror Wills are usually used by couples. They are mainly identical to and reflect each other.
They may be changed or revoked at any time by either Will-maker.
Mirror Wills: Positives
- Mirror Wills can be changed at any stage even after the death of one of the Will-makers. This is particularly useful for young couples and blended families who may need to make changes in the future.
Mirror Wills: Negatives
- Making changes to both Mirror Wills or changing or revoking only one of the Mirror Wills does not require notice to the other party. For example, a surviving husband may decide he no longer wants his step-children to inherit anything, including the assets he acquired through the estate of his first wife. The husband may revoke his Mirror Will and create a fresh Will excluding the step-children.
- For instance, there are cases where a surviving spouse re-marries and has more children, then change his or her Will to leave his or her estate to the new spouse and new children and cut out the children from the first marriage.
What is a mutual Will?
Mutual Wills (also known as Mutual Will Contracts or Binding Wills) form a legally binding contract between two people and do the following:
- Both Wills are drafted in terms agreed upon by the parties making the Wills; and
- The Wills prevent either party from revoking or amending their Will without the agreement of the other because, after the death of the first person, both Wills become irrevocable and cannot be amended.
- Mutual Wills work as a contract to protect the estate interests for the beneficiaries of both Will-makers.
Mutual Wills: Positives
- If either party changes their Will contrary to the agreement, the courts may enforce the original agreement.
- If the surviving party unreasonably exhausts assets of the deceased, beneficiaries may sue for breach of contract.
- Where both parties have agreed to the terms in their Wills, the surviving party will be bound by this agreement and can be sued for breach of the agreement.
Mutual Wills: Negatives
- Mutual Wills do not prevent challenges to the estate.
- Circumstances may change after the Mutual Will Agreement has been signed, which could disadvantage the survivor (such as remarriage, additional children and other matters).
- The survivor may deliberately attempt to frustrate the operation of the Mutual Will Agreement by depleting the estate assets or by changing the way these assets are owned.
Making even a simple Will can be complex, so it is important that both parties understand the difference between Mirror and Mutual Wills (as well as a standard Will).
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