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