A question we are often asked is: should a married couple make a joint will or two wills? While joint wills (also called “mutual wills”) are still offered by some lawyers, we do not recommend them. This is because, if a married couple makes a joint will and one partner outlives the other, the surviving spouse is bound to the instructions in the will. The longer the surviving spouse lives, the more likely this is to lead to problems.
Married couples should instead consider making a pair of wills or mirror wills. A pair of wills are two wills, drafted at the same time but separately of each other. This means that each individual has the freedom to allocate their possessions entirely as they wish. In this case, it is important to know who owns what within a relationship, and which possessions – especially real estate – are jointly owned, and how they are owned.
For example, many people choose to give in their will the right to live in a property. To do this, it is important to know that you are within your rights to offer this, and that you are not replicating a right that someone already has through marriage.
Mirror wills can be a good option for married couples. As the name suggests, these wills have mirrored instructions – often that the estate should go to the partner and then to the children.
A mirror will can include instructions for both parties’ estates to be left to any surviving children should both parties die at the same time. You can also appoint a guardian for any children aged under 18 should both parents pass away at the same time.
With both a pair of wills and mirror wills, either partner is free to update their will at any time, so it is important to trust the person you are making a will with, and update your documents should your circumstances change.