The pitfalls of mirror wills and how to protect your estate when you have children from a previous relationship

Obtaining professional advice on your will is always recommended. However, it is even more important to take specialist advice and review the options available to you should you have a mixed family with children from previous relationships. During your lifetime you are in control of guiding your family through complexities that may arise, but what happens when you die? A will can help navigate those complexities after your death and ensure that your chosen beneficiaries ultimately inherit.

The Sunday Times recently reported on the case of the late Roger Jones, which resulted in an estate dispute amongst his surviving family members. In this case, Roger had three children from a previous marriage. Until his death, he was married to his second wife, Lulu. Lulu also had children from a previous marriage. Roger’s own children believed that their father wanted them to inherit a share or his estate and a share of their grandmother’s estate, which Roger had previously inherited. The Sunday Times article suggests that Roger and Lulu made mirror wills, which directed the entire estate to pass to the survivor of them. Then, on the survivor’s death the estate would be split equally between Roger and Lulu’s respective children.

Mirror wills are very common and are on average, what most married couples will have in place. However, an individual has testamentary freedom and can revoke their will and make a new one as many times as they like during their lifetime (as long as they have the testamentary capacity to do so). With a standard mirror will, you trust that the survivor of you is not going to revoke their will and direct the estate elsewhere to other beneficiaries. In the case of Roger Jones, his wife Lulu made a new will following his death (not to the knowledge to his children), which excluded Roger’s children in favour of her own children. When Lulu died in June 2020, it was only then that Roger’s children discovered that Lulu had made a new will and they would not receive any of their father’s estate (which included their grandmother’s estate that Roger had previously inherited). If Roger and Lulu had sought the advice from a wills and estate planning specialist, the result could have been very different, and the dispute avoided.

Alternative options to mirror wills

A couples that have children from previous relationships can execute a mirror, leaving their estate outright to each other on the first death and then down to the respective children, but the inheritance for the children would not be guaranteed, as was the case with Roger Jones and his wife Lulu.

Mr Jones’ story is just one example of what could happen. If a couple made mirror wills and one of them died, the survivor could remarry or enter into a new civil partnership. A new marriage/civil partnership revokes an existing will, so if the survivor then died without making a new (intestate) the majority of the estate could then transfer to the survivor’s new partner. Or if that new marriage/civil partnership dissolved and ended in divorce, the assets that form part of the estate could be lost in a settlement.

To retain control over the estate after death and guarantee your children receive their inheritance, the options for couples with children from a previous relationship include:

• A Life Interest Trust

A life interest trust allows a person making a will to protect their estate for their ultimate beneficiaries. A life interest trust will allow you to leave the property or wider estate assets that you own on the date of your death to your Trustees. The principal beneficiary (i.e. the surviving spouse or partner) is what is known as the “life tenant”, and he/she is entitled to benefit from the assets held by the trust for the rest of their life or until the trust comes to an earlier end. This would mean the survivor would get the income from any invested capital and could live in any house owned by the trust rent-free for the rest of their life. The key aspect with a life interest trust is that the life tenant does not own the assets in the trust, but merely receives a benefit from them. Hence the assets are protected in the so that they can pass to the ultimate beneficiaries once the life tenant has died.

How the life interest trust is structured will depend on the specific circumstance of the testator and their wishes. For example, the testator might choose for the survivor’s life interest to be more flexible in nature and include additional provisions allowing the trustees to advance capital to the surviving spouse or partner if needed; and to provide flexibility to allow the trustees to give assets to the children in their lifetime.

• Mutual Wills

Mutual wills are similar to mirror wills, but they also contain a legally binding agreement (not necessarily in the will itself) between the individuals making the Wills, to say that the will cannot be changed by the surviving partner once the first has died. Although Mutual Wills are a valid option, the agreement to make mutual Wills can be evidenced outside of the Will. This can result in uncertainty and potential disputes in the future. Mutual Wills are also not necessarily the best option due to their binding and inflexible nature. Therefore, a trust is a more flexible way of protecting the assets and ensuring they pass to your chosen beneficiaries after the survivor of the couple has died. The survivor would still have the testamentary freedom to make a new will, but the assets in the trust are ring fenced for the children, so that only the assets owned in the survivor’s sole name, outside of the trust, would pass in accordance with any new will they make.

Conclusion

Structuring your will in the best way possible cannot eliminate the possibility of someone making a claim against an estate but taking specialist advice and the possible use of trusts can help prevent disputes in the future. It is therefore important that couples in their second marriage or civil partnership take advice on how best to structure their wills.