When a woman contacted her family lawyer after her husband died, she was shocked to discover that her husband’s Will was very different to the “mirror Wills” they had prepared together with their lawyer around five years prior to her husband’s death.  Apart from some specific gifts of sentimental family items to be given to their children, the couple had “agreed” to leave the residue of their respective estates to each other, and to their children in the event that their spouse was already deceased.   The two Wills were typical “mirror Wills” – same assets, same beneficiaries; they mirror each other.   

Now the woman discovered that a property owned solely by her husband, had been left to a charitable organisation and a small shareholding had been left to one of the three children.  The woman felt aggrieved at this discovery, not only because of her own thwarted expectations but also because one of their children had been favoured over their siblings.

How could this situation have arisen and how could it have been avoided?

It is important to understand that when you make mirror Wills with your spouse or partner, it does not constitute a binding agreement.  Everyone has the liberty to revoke their Will whether or not it is made in good faith with the intention of each person providing for their spouse or partner and ultimately, for their children. 

Mirror Wills can work well for a lot of families but sometimes complications arise, for example when the surviving spouse or partner re-partners.   In this scenario some, if not all of the assets that you thought were ultimately destined for your children have become the subject of relationship property.  Furthermore, if your surviving spouse or partner dies before their new partner, there is a possibility that the new partner may disinherit your children (ie. the new partner’s step-children). 

“Mutual Wills”, on the other hand, contain clauses where each person agrees how they will dispense with their assets and they promise not to change their Will in a way that is not in accordance with that agreement.  It is a promise not to revoke their Will or to make their Will less favourable to particular beneficiaries, without informing the other person.   Such promises may also be made in a separate Deed to sit alongside your Will.  Either way, it is prudent to record such promises in writing and to have that document filed in your Lawyer’s Deeds system with your other family documents. 

It may be time for your family to review their Wills and to have a conversation with your lawyer about what type of Will best suits your situation.  It is important to be assured that the Will you have in place reflects your intentions and protects your assets from those who you do not wish to bestow ownership. 

Therese Greenlees
Legal Executive
Wellington