Who can make mirror Wills?
In theory, any two people can make mirror Wills. They are most common, and most appropriate, for:
married couples;
couples in a civil partnership; and
couples in a permanent cohabiting relationship.
But other combinations of people might find it appropriate, too – such as siblings who do not have any other family.
Mirror Wills would be appropriate for you where you both want to make virtually identical Wills. If your intentions are fairly straightforward, then a mirror Will may be exactly what you need. For example:
you simply want to leave everything to each other, and then to your children;
you want to leave everything to each other and then to other members of your families or friends; or
you want to leave everything to each other, and then to a charity that you both support.
In those examples, as in most such situations, the primary beneficiary of each person is your partner. After that, the provisions of the Wills would usually be almost exactly the same.
If you are not married or in a civil partnership you might find mirror Wills particularly appropriate. This is because the rules of intestacy do not favour such couples: if one of you dies intestate (without a valid Will) then the other does not automatically benefit from their estate; it would be distributed according to the rules of intestacy among the blood family of the deceased partner. (If you were married or civil partners, then the surviving spouse or partner automatically inherits most or all of the estate). This could mean that, without Wills which clearly give effect to your joint intention, the estate could be distributed very differently depending on which partner dies first.
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 an exempt beneficiary (i.e. one to whom a gift would not be subject to tax). Spouses and civil partners are exempt beneficiaries, but other cohabiting partners are not.
What can be different in mirror Wills?
There is nothing legally distinct about mirror Wills. So, logically, there is no rule saying that, except for the part that leaves property to the other partner, the two Wills have to be absolutely identical. It is quite common for there to be slight differences between the two parts:
Funeral wishes: one of you may wish to be cremated, and the other to be buried.
Gifts to charities: you might each 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 – such as jewellery or photographs.
In other words, mirror Wills are two individual and separate Wills whose provisions match each other entirely or for the most part.
As we have said, 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.
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, rather than solely by a relationship which could be ambiguous.
If the intention is to benefit both sides of the family equally, then the Will should make that clear. For example:
the whole estate is left to your civil partner, or if they have predeceased you, to ‘all my siblings and my civil partner’s children in equal shares’; or
the whole estate is left to your civil partner, or if they have predeceased you, ‘50 per cent to my children in equal shares, and 50 per cent to my civil partner’s children in equal shares’.
However, if the intention is that the gifts to families would depend on which partner survives the other, then that would not be a mirror Will.
When mirror Wills are not suitable
Since mirror Wills are ideal for straightforward situations, it follows that they are not likely to be suitable for more complicated arrangements. And being complicated does not mean that such situations are uncommon.
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.
A common instance of this is where both parties have been married before, and have children from their first marriages. If the family home is the property of the husband, for example, he might leave a life interest in the house to his wife, then to pass to his children. But his wife would not need to make such provision.
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.