By Alfred Ip, Partner
It is common for couples to leave everything to the spouse in their Wills, and to their children if the spouse predeceases them. Their Wills will be like mirror images of each other, and thus they are commonly referred to as “Mirror Wills”.
However, Mirror Wills do not prevent the surviving spouse from subsequently changing their Will and leaving assets to other people, such as a new spouse. There is therefore a risk that family assets may not go to their children.
Couples can agree with each other not to change their Will during their lifetime. If any beneficiary is disinherited or suffers financial loss due to any breach of such agreement, they can claim against the estate of the surviving spouse after he or she has passes away. Such Wills are called "Mutual Wills".
However, problems arise when the aggrieved beneficiaries wish to enforce their rights under the Mutual Wills:-
1. Can they still find the Mutual Will that evidences such an agreement? They are often destroyed by the surviving spouse who revoked the same and breached the agreement.
2. Can they claim their rights to family assets against a third party if those assets have been given away by the surviving spouse as inter vivos gifts?
3. Can they set aside the new Will made in breach of such agreement?
4. Is the whole estate of the surviving spouse subject to such an agreement?
5. Would the surviving spouse’s remarriage revoke the Mutual Will?
6. What are the rights of a new spouse towards the estate under the Mutual Will?
The above is not an exhaustive list of issues that may arise with Mutual Wills, but it is enough to demonstrate that making Mutual Wills is never a good idea. It often causes more trouble and confusion than providing protection. This defeats the primary reason for making a Will which is certainty.
Family legacies should be planned properly in order to hold the family together. Talk to us if you wish to know more about how to avoid the above pitfalls.