We explain what a mutual will is and why it might not be the best solution for your family
It might not be the most fun conversation to sit down and have with your partner, but making a will is an essential step in being part of a committed relationship. After all, the last thing you want to do is leave your partner with the trouble, confusion and potential legal minefield that can be caused by dying intestate.
Mirror Wills vs Mutual Wills
One of the most common scenarios is for couples to leave everything to their spouse, and then to their children if their spouse predeceases them. These types of wills are often referred to as mirror wills, since the will of each party is essentially a “mirror image” of the other.
Whilst this idea sounds simple in theory, as ever with legal documents, there are a few issues to watch out for. For instance, a mirror will does not normally prevent a surviving spouse from subsequently changing their will to leave assets to other people, such as a new spouse – meaning there is a risk that the family assets may not be passed onto their children as originally intended.
To avoid this issue arising, some couples choose to make a mutual will – where the terms of the will are mutually binding even after one of the parties passes away. Therefore, if any beneficiary is disinherited or suffers financial loss due to a breach of this agreement, they can then claim against the estate of the surviving spouse.
The Potential Problems of a Mutual Will
Whilst a mutual will might seem like the easiest option, there are in fact many problems that can arise when aggrieved beneficiaries wish to enforce their legal rights under the mutual will. As experienced solicitors used to dealing with all the ins and outs of probate, we’ve seen practically every possible dispute that you could imagine, but a few of the most common issues include:
- Can the mutual will that contains the disputed agreement be found? (They are often destroyed by the surviving spouse who revoked and breached the agreement.)
- Were the family assets given away by the surviving spouse as inter vivos gifts – gifts made whilst the deceased spouse was still alive? If so, the aggrieved beneficiary’s claim may not be valid.
- Is the surviving spouse’s whole estate subject to the agreements of the mutual will?
- Does the surviving spouse’s remarriage revoke the terms of the mutual will?
- What are the rights of the new spouse in regards to the estate under the mutual will?
- Can the new will that breached the mutual will’s terms be entirely disregarded, or are there any other terms that cause complications between the two documents?
It is worth remembering that a will’s main purpose is to create something that outlines and protects your wishes with certainty; mutual wills instead often have the opposite effect, causing more trouble and confusion for the surviving parties. The above list certainly isn’t exhaustive when it comes to the problems that can arise from mutual wills – but should be enough to demonstrate exactly why making a mutual will with your spouse might not be the best idea.
At the end of the day, family legacies must be planned properly in order to hold families together, rather than tear them apart. If you want to know more about how to plan a will for your family in Hong Kong – and avoid all the pitfalls discussed – get in touch with our experienced team of solicitors.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.