A recent article on This Is Money highlighted the sad case of Janice Chapple, who lost out on her inheritance due to the fundamental pitfalls of basic mirrored Wills.
The article describes how Janice’s mother, Phyllis, and stepfather Vic made Wills at the same time. As is common with couples, they made mirrored Wills.
Mirrored Wills are probably the most common type of Wills made by couples. At least, they’re the most common ones that my clients ask for. The idea behind them is simple. When one partner dies, all of their estate passes to the survivor.
At this point, the survivor’s Will has not been touched because they are still alive. It still says that everything would go to their partner, who of course is now deceased.
But mirrored Wills also have what’s called a “fallback” clause. If the partner has died before them, it would pass to someone else. In the case of Phyllis and Vic, the fallback was to Janice (Phyllis’s only child).
In the event, Phyllis died first and Vic inherited everything. On his death, Janice would naturally have expected the estate to pass to her because of the fallback clause in Vic’s Will. But this didn’t happen, as the article explains:
So when Vic died the following year, Janice, 74, was devastated to learn that he had left all of Phyllis’s belongings – including her home – to his cleaner. Unbeknown to Janice, Vic had rewritten his will.
Mirror Wills can be changed
This highlights the main problem with mirrored Wills. They are not set in stone. As the article says:
That is because a legal loophole allows surviving spouses to alter or entirely rewrite a will after a partner dies. This enables the surviving spouse to cut out their deceased partner’s family altogether. There are no restrictions on altering a mirror will after a partner’s death.
It’s not a “legal loophole”, however. It is simply the law! Unlike other countries, in the UK you are not legally obliged to leave a certain amount to your children. You’re perfectly entitled to change your Will whenever you want.
I imagine that people who make a new Will leaving everything to their cleaner are rare. And whilst there’s no way of knowing all the facts of this particular situation, it’s easy to feel a lot of sympathy with Janice. No doubt we wouldn’t want this to happen to us.
A much more common scenario is when the surviving partner embarks on a new relationship and changes their Will to favour that person. The problems come later if they have not reviewed their Wills, says the article:
An estimated one in three families in the UK are blended, which means parents have remarried after having children with a former partner. But nearly half of these have not updated their will after divorcing, remarrying, having more children or becoming a step-parent, according to data seen by The Mail on Sunday.
In fact, if couples remarry, this would automatically revoke their existing Wills. The same applies to civil partnerships. New marriage or civil partnership = cancelled Wills.
Disputes in “blended families”
Disputes about Wills are, the article claims, more common amongst “blended families” like Janice’s. Richard Thomas of IDR Law gives a good explanation of how this can happen:
‘If you are only doing a mirror will and it gives everything to your partner with the understanding they will honour your wishes after you die, you are relying solely on trust. It is not binding,’ he warns.
‘That might seem fine in the moment. However, what we see all too often is if the first person passes away, their surviving partner decides they never really liked their stepchildren and changes the will to leave everything – or a larger share – to their own blood relatives.’
Richard Thomas, partner, IDR Law
Which brings us to the solution to all of this. In my experience, there are two parts to it: one is mindset and the other is practical.
The mindset aspect is about confronting something none of us wants to think about: the death of our partner. And not only that but it’s also totally understandable that most of us don’t want to imagine our partner living a happy life with someone else, especially if we are both alive and well!
But once you have got over that mental hurdle, it’s time to talk to a legal professional about what you can put in place.
What you can do
The answer you are looking for is Trusts. Again, the word Trust can come with negative baggage. People associate them with high cost and a loss of control.
Neither of these are true. Trusts may cost more than basic Wills, but think of the value they’ll give your family after your death. As for loss of control, the opposite is the case. Remember that you won’t be around when your Will is read, so it’s not control you need, it’s protection of assets.
For all the reasons mentioned above, basic Wills provide no protection whatsoever. Ultimately, Trusts avoid the problem of disinheritance that Janice sadly encountered.
In my experience of writing Wills for clients in Bristol, I regularly encounter people who already know a bit about Trusts. Typically, it’s because their family members and friends have made these types of Wills before.
I also regularly meet people who have suffered a loss of inheritance in their own family due to exactly the kind of issues discussed above, where someone has died and the survivor changed their Will.
Prudent estate planning starts by discussing exactly these issues. Discussions with me are always free, and if you decide to go ahead, I’ll advise you on the best type of Will for your circumstances.
In the meantime, if you want to do a bit of research, visit this page or download my free factsheets on various aspects of Trusts by clicking the button.
