What is a ‘Mirror Will’ in Australia?
Mirror Wills are essentially identical Wills. They are very common in domestic relationships. Usually, the Estate is left to the surviving spouse and then distributed amongst any children after that partner’s death. This sounds simple and can work well.
Whilst it’s not often talked about, the surviving spouse can re-partner. In this event, what are the implications for the children’s inheritance? Does the Mirror Will stand preserving the children’s inheritance, or do the assets pass to the new partner?
It is often assumed that the creation of Mirror Wills protects the assets and the children’s inheritance. However, if an existing Will does not take into contemplation the new partner, the Will can be contested.
Can a Mirror Will be changed without the other partner knowing?
Some of our clients have been surprised to learn that their recently deceased partner had made changes to their Will without informing them. They had assumed that any changes to their partner’s Will had to be approved by them. This is not the case! Mirror Wills do not prevent a person from making another Will.
A partner can change their Will.
Also:
- a promise not to change one’s Will, or to distribute assets in a certain way, may not be enforceable,
- a verbal promise may not be binding, and
- a promise made between partners not to alter their Wills, or distribute their Estate in a certain way, may also not be binding.
One partner may change their Will to switch beneficiaries without the other partner’s knowledge, denying the originally agreed upon beneficiaries their share of the estate.
This is why it’s important to seek expert legal advice.
Is a Mirror Will enforceable?
Legal enforcement of your testamentary wishes can be achieved by making a Deed.
A Deed of Mutual Wills and the creation of testamentary trusts for certain beneficiaries can be effectively used to remedy the potential pitfalls of Mirror Wills. A Deed of Mutual Wills is a separate document that contains legally binding promises not to alter one’s Will during their lifetime without the other partner’s agreement. It provides peace of mind that the family assets shall be inherited by those originally agreed upon, and importantly, it protects the interests of your children, should the surviving spouse create a new family.
Need help?
At Northern Beaches Lawyers, we deliver clear legal advice which provides our clients with the certainty that their wishes Will endure, giving them peace of mind that their loved ones Will be looked after. Contact us today for a chat about how we can help you too.
*Where we refer to spouses, this includes people who are married and in defacto relationships.
