Island Life Magazine Ltd June/July 2015 | Page 113
ISLAND LIFE MAGAZINE
Help from Glanvilles
By Claudia Roberts
Glanvilles LLP,
The Courtyard Office, Newport, PO30 5BF
01983 527878
[email protected]
Should wills be
mutually binding?
W
hen couples (married,
unmarried or in a civil
partnership) make wills they
usually wish to provide for each other
when the first one of them dies.
Accordingly most couples make wills
to say that when the first one dies the
other will inherit everything - or at
least all major assets such as the family
home. Most wills of this nature provide
that when the second one dies the
inheritances passes to the children of
the couple or to children from previous
relationships. Such wills are often referred
to as ‘mirror wills’ as they effectively reflect
one another. It is important to note that
such wills are not mutually binding i.e.
each person can change their will at any
time even after the first has died.
This can be a problem - particularly
in the case of 2nd relationships - as the
survivor can simply change their will,
and leave everything that has been
inherited from the first to die, to their own
children - so the children of the first to die
completely miss out. Equally the survivor
could re-marry and leave everything
to a new spouse or children of a future
relationship.
So how can this be avoided?
It is possible to enter into an agreement
to make wills mutually binding. This can
be done in the will itself or in a separate
agreement. It does not mean that either
party can no longer change their will but
it does mean that any change would be
ineffective unless mutually agreed. All
professional will writing bodies strongly
warn against mutually binding wills.
Although mutual wills appear to give
certainty and protection reality is that
they do not. For starters the survivor can
use the entire inheritance and/or give
it away during his or her lifetime. If the
survivor has to go into care everything
could be taken to pay for the care leaving nothing for the children to enjoy.
Also the survivor can change their will
but the law imposes a floating trust over
the inheritance of the first estate to give
effect to the mutual will in the long run.
This can make matters very messy and
will likely result in litigation - the only
winners of which are lawyers.
Instead of mutual wills, special trusts can
be used in wills to ensure that the survivor
can have the full benefit of the assets
of the first to die but that ultimately the
assets pass in accorda