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Blended Families  – Step Children. Getting your Will right.

The increase in blended families i.e having children from more than one partner can have a knock-on effect on estate planning and Will writing. It is natural to want to provide for you current children and any children you have from previous relationships, there are two established ways that Will drafters use to cover this scenario:

  1. Will Trusts
  2. Mutual Wills

There is a third option that Testators may consider using are Mirror Wills. However, the use of Mirror Wills, whilst extremely common, to protect blended families is not free from risks, especially if the main objective is to provide mutuality of obligations.

A Mirror Will is where the Wills of two Testators simply mirror each other, however, there is no obligation to keep the terms the same after one spouse dies.

An interesting case is McLean v McLean 2023.

In McLean V McLean 2023, a husband and wife executed Mirror Wills in 2017, leaving their respective estates to each other, and the residuary estate of the surviving spouse to their four children in equal shares, three of the children (Claimants) were stepchildren to the wife.

At the time of drafting the Will, it appears the Solicitor highlighted the fact that Mirror Wills can be changed after the death of one party, which may fundamentally change  “the Mirrored provisions” of the previous Will. In this case the husband stated that he has been with his wife for some 45 years and trusted her implicitly to adhere to the agreed clauses.

However in 2019, when the husband died the wife executed a new Will, leaving her entire estate to her and her last husbands only child (Defendant), effectively disinheriting the three children of the husband from his previous relationship.

The Claimants contended that the Wills executed in 2017 were Mutual Wills, that the circumstances could arise to Proprietary Estoppel.

It was held that the doctrine of Mutual Wills did not apply, as the evidence did not clearly demonstrate there was a legally binding agreement, akin to that of a contract.

What Makes A Mutual Will?

Mutual wills are wills generally made by a married couple who agree not to revoke them without the consent of the other.

Will drafters should be aware that it is normally preferable to use a formal trust structure rather than entering into a Mutual Wills agreement. However, there may be cases, particularly in relation to modest estates, where the use of such an agreement is justifiable.

Two key points for Mutual Wills:

  • Parties will leave their property in a particular way (sometimes to each other)
  • Neither party will revoke unilaterally

If the first party to die has carried out their part of the agreement, the law imposes an obligation on the survivor to give effect to the agreement.

Proof to the agreement

It is a requirement that there is evidence that the Wills were to be irrevocable. There must be evidence of an agreement that the parties must not revoke their Will, and best that this is stated within the Will.

Disadvantages of Mutual Wills.

  • The first to die will have little certainty that the assets will pass to the intended. The surviving party is free to dispose of the assets unless such disposal is made with the object of defeating the interests of the agreed ultimate beneficiary.
  • The uncertainty if the trust binds the property inherited or if it extends to the property owned by the survivor at the death of the first to die or to the after-acquainted property of the deceased.
  • Cannot make a new Will after the first party dies to cover new assets the survivor has gained after. This includes not adding new beneficiaries to the Will or taking some out.

Advantages of Mutual Wills.

  • For security of your assets to your future beneficiaries.

Where testators have entered into a mutual Will agreement, following the death of one testator, the property of the survivor becomes subject to a trust.

Will Trusts.

We will discuss Will Trusts in detail at a later date, after that as mentioned these are the preferred methods to deal with assets held by couples when seeking to provide for blended families.  

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