Mirror Wills are two separate Wills, usually made by a couple, in near-identical terms. Each leaves everything to the other, then to their children. In Western Australia, mirror Wills are not binding on the Will makers. Each Will maker can revoke their Will and make a new one at any time, even without notice to the other.
What do mirror Wills look like?
The standard format is:
- you appoint your spouse or partner as your executor if he or she survives you;
- if your spouse or partner dies before you, you appoint a trusted friend, relative or one or more of your adult children as your executor;
- you leave the whole of your estate to your spouse or partner if he or she survives you; and
- if your spouse does not survive you, your estate is divided equally among your children.
Each partner signs their own Will. Nothing in either Will refers to the other.
Are mirror Wills legally binding on each other?
A Will can be revoked at any time while you have capacity to make a new one. Two Wills in matching terms are still two independent documents.
Either of you can change your Will at any time, before or after the other dies, and without telling them. When the first partner dies the survivor inherits, and is then free to make a new Will on any terms. Mirror Wills record a shared intention, but they don’t bind each other to keep the same terms forever; which is often the part people miss.
What can go wrong?
Mirror Wills are a perfectly sensible and very common scenario, but they don’t work in all situations.
For example, the survivor might make a new Will and leave their estate to a new partner, one child rather than all of them, or their own children rather than including their step-children.
The other problem is a change made while you are both alive. There is no requirement to tell the other Will maker that you’ve changed your Will. A person can change their Will, die first, and leave their partner to discover at the funeral that the arrangement they thought was settled never held.
Two situations make this more likely:
- Remarriage. In Western Australia, marriage revokes a Will unless the Will was made in contemplation of that marriage. If the survivor remarries and does not make a new Will, they die intestate and their new spouse takes a substantial share under the statutory formula.
- Blended families. Where either partner has children from an earlier relationship, mirror Wills typically route the whole estate through the survivor. Whether the first partner’s children ever receive anything depends on the survivor’s goodwill years later.
Mirror Wills and mutual Wills are not the same thing
A mutual Will agreement is a separate binding contract between the couple not to revoke or change their Wills. Where there is a valid agreement and the survivor breaches it, the people who should have benefitted have legal rights over the estate.
| Mirror Wills | Mutual Will agreement | |
|---|---|---|
| Two Wills in matching terms | Yes | Yes |
| Separate binding contract | No | Yes |
| Survivor can change their Will | Yes | Yes, but in breach of contract |
| Remedy for the disappointed beneficiaries | None | Claim against the estate |
| Survivor keeps flexibility for changed circumstances | Yes | No |
A mutual Will agreement locks the survivor in for what may be decades. That is the point of it, but it is also its main drawback. Mutual Wills are more difficult than they first appear.
They don’t stop the survivor changing their Will, but they give the disappointed beneficiaries a claim afterwards. The mechanism is litigation against the estate rather than prevention. That litigation can be slow and expensive and is usually between family members. The beneficiaries also have to know the agreement exists before they can enforce it, so the whole mechanism can fail simply because nobody told the children.
Mutual Wills usually don’t prevent the survivor from dealing with their assets while they are alive. The survivor can spend the money, sell the house or make gifts and there may be nothing left to argue over.
In addition to these issues, mutual Wills cannot anticipate thirty years of change. A beneficiary who develops a disability, a child who dies first, a grandchild nobody planned for, the cost of aged care. The survivor stays bound to a document written for a family that no longer exists. The agreement becomes irrevocable on the death or incapacity of the first party, so the survivor can be locked in while the other is still alive but no longer able to agree to a change.
We do not prepare mutual Will agreements. The situations that lead people to ask for one are usually better handled by a life interest or a testamentary trust, which give the same protection without binding anyone to a contract.
When are mirror Wills the right choice?
They work well where:
- you are in a long-term marriage or de facto relationship;
- all the children are children of both of you;
- you are happy for the survivor to have full control of the combined estate; and
- no beneficiary has a disability, a creditor problem or a relationship breakdown risk.
They may be the wrong choice where there are children from an earlier relationship, a business or family trust in the picture, a beneficiary receiving a Centrelink or NDIS payment, or where either of you wants a guaranteed outcome for a particular person.
What are the alternatives?
There are three main alternatives to mirror Wills: a life interest, a testamentary trust and keeping mirror Wills but reviewing them whenever something changes. Each protects your beneficiaries in a different way.
A life interest. The survivor has the right to live in the home or receive the income for their lifetime. The capital passes to your named beneficiaries on the survivor’s death. This gives the survivor security without giving them the power to redirect the estate.
A testamentary trust. The inheritance is held on trust rather than paid out. This adds tax flexibility and protects the inheritance from a beneficiary’s divorce or bankruptcy. See Testamentary trust Wills.
Mirror Wills plus a regular conversation to make sure everyone is on the same page. For many couples this is enough. Review the Wills when something changes.
Frequently asked questions
Can my husband change his Will after I die if we made mirror Wills?
Yes. Mirror Wills are two independent documents. Either Will maker can make a new Will at any time while they have capacity, on any terms.
What happens if my partner and I die at the same time?
Your Will should include a survivorship clause and a substitutional gift, so the estate passes to the children or other named beneficiaries rather than falling into intestacy.
Can our children challenge a mirror Will?
An eligible person can bring a family provision claim against an estate in Western Australia regardless of what the Will says. Mirror Wills do not prevent this.
Talk to us about your Wills
We tell you upfront whether mirror Wills suit your situation or whether you need something else. Our fixed prices are published, so you know what it costs before we start.
Book an appointment or call the Wills team on (08) 9220 4433.
See our Wills service and pricing.
This article is general information and not legal advice.
