Some married couples enquire about making joint wills where they think that they can make one Will covering both of them. It is important to make one singleWill for each person as a Will is an individual legal document and applies to the individual person (testator) alone.
It is however possible to make “mirror Wills” where both testators generally agree what they want to happen in the event of their death and express those shared wishes in nearly identical terms in their own respective wills. They do not have to mirror each other entirely but they should however mirror each other in terms of both testators’ mutually agreed wishes relating to their respective estates.
Mirror Wills should not be confused with “mutual Wills” although mutual Wills can also mirror each other. Mutual Wills differ from mirror Wills in that they are a rigid, legally binding and enforceable contractual agreement. Mirror Wills are not. Each party to a mirror Will fully accepts the right of the survivor to change his or her Will as and when they see fit. Mutual Wills do not afford either party that option. The only preventative sanction anyone drafting a mirror Will has is the hope that neither party will choose to change or revoke their Will before they die.
For Wills to be treated as mutual Wills there has to be an express agreement between the two testators that both Wills will be irrevocable and will remain unaltered. Normally such an agreement will be incorporated into the Will of each testator.
Where mutual Wills are made on the first death of the couple, if the deceased stood by the agreement and had not revoked or altered their Will, then the survivor will hold the property and assets of the deceased testator on a form of trust. If the survivor fails to perform their part of the agreement, for example if they revoke or alter their own will, the survivor commits fraud and if an application were to be made to Court, the Court is likely to refuse to give effect to such revocation or alteration.
If the deceased testator did not stand by the agreement, for example if he or she revoked or altered his or her Will before their death then the surviving testator is not bound by the agreement and is, therefore, free to revoke or alter his or her own Will.
Mutual Wills can have the effect of restricting the freedom of the surviving testator to effectively deal with both his or her own property and the property inherited from the deceased testator. Problems can also occur if one of the testators remarries after making a mutual Will as the mutual Will will probably remain valid. For these reasons most legal advisers do not recommend