When a couple decides to each make a Will, it is not unusual for them to have a discussion and decide what will be the terms of the Wills. They may agree as to where the assets are to pass when the first of them dies and then when the second of them dies. If the couple agrees that when the first of them dies that the survivor will not change the terms of the Will, then the Wills are referred to as Mutual Wills. The agreement between the couple that the Wills shall stand until the second of them dies is an enforceable agreement. If however, there is no such agreement and neither person is concerned if the survivor changes his or her Will after the first person dies, then the Wills are referred to as Mirror Wills. If the couple intends to make mutual Wills, then they should inform their lawyer of their intention and the agreement between them can be documented to ensure that the survivor honours the agreement after the first person dies. Otherwise, if no one is aware of the agreement (that the Wills are Mutual Wills), then it is possible that if the agreement is breached that there is no recourse available to the aggrieved beneficiaries. If one or both of the spouses has been married previously and there are children from those previous marriages, then it follows that it may be important to both spouses to ensure that the survivor does not have the opportunity change the Will after the death of the first spouse.
My next article will deal with documentation of the agreement.