Joint Wills
People often speak about making joint Wills when they want to make matching
provision to each other. It is perfectly acceptable to make Wills which make that provision, but in law a Will can relate to only one person, so that matching provision has to be made in two Wills.
Even if two people were to try to make a joint Will in a single document, the law would treat it as two Wills. Most people use the term joint Will’ to refer to some form of mirror Will.
What is a mirror Will?
Mirror Wills are individual Wills made by two people (usually married, in a civil partnership or cohabiting) that are intended to match or be practically identical.
The common situation is that mirror Wills are made by a couple who are married or in a civil partnership. Typically, mirror Wills will leave everything to the other person, and if they have already died, everything to their children.
But there is no legal reason why more complicated provision cannot be made in mirror Wills. Neither is there any legal reason why any two people cannot make Wills that match each other in this way.
For example, if you live together as a couple in a permanent relationship, but are not married or civil partners, you might still have virtually identical wishes as to what you would like to happen to your property when you die. For such a couple, mirror Wills could be doubly important to give effect to your joint wishes and to avoid the effects of intestacy.
Another aspect of inheritance which operates a little differently if you are not married or in a civil partnership is the operation of the nil rate band for inheritance tax. It is less likely to be appropriate to pass on the nil rate band through the Will if the beneficiary is not exempt. Spouses and civil partners are exempt beneficiaries, but other cohabiting partners are not.
Effect of mirror Wills
Whether a Will is described as a mirror Will or not has no effect in law on the validity of the Will or on how the clauses in the Will are to be put into effect. This is because each person can only make provision in relation to their own estate. Even if you intend to make the same provision as your partner, each of you is making an independent choice, so each Will is separate.
Making mirror Wills is often a matter of practical convenience. Couples use them for clarity and simplicity, and to make the drafting of match for consistency. However, they are not always suitable.
What can be different in mirror Wills?
It is quite common for there to be slight differences between the two Wills:
Funeral wishes: one of you may wish to be cremated, and the other to be buried.
Gifts to charities: you might have different charities that you prefer to support.
Specific gifts: one of you may have specific possessions that you would like to be given to a particular person.
A point to watch out for is the inclusion of differences between the Wills which do not look like differences. For example, a gift to ‘my brother’ could mean different people, depending on which partner’s Will is being considered. If both partners intended a particular person to benefit, it is better to refer to them by name.
When mirror Wills are not suitable
Mirror Wills are not likely to be suitable for more complicated arrangements.
Most frequent are circumstances where one or both partners have had children with other partners. Gifts to ‘children’ might then be different, depending on which partner’s Will was being considered.
It is also common, if one or both of the partners have been married or in a partnership before, for them to have separate financial arrangements and to keep their property separate. In such cases, the intention of the couple is likely to be that different arrangements will come into effect depending on which of them survives the other.
It is not unusual for mirror Wills to have some differences between them. But it is rare, and inadvisable, to introduce differences in the main provisions of mirror Wills. If there are to be significant variations between the two Wills, it's better to draft individual Wills.
Finally, and obviously, if the two people have very different intentions as to how they wish to dispose of their property, then they should not make mirror Wills.
Complementary, matching and mutual Wills
You may sometimes see the term ‘complementary Wills’, or occasionally ‘matching Wills’, and these can both describe the same situation as mirror Wills.
Mutual Wills are rarer and more complex, and involve binding provisions that prevent one of the testators from subsequently changing their Will.