What is a Mutual Will, Mirror Will and Joint Will?
There are various types of wills. Couples generally have several options to write a will together, such as the following:
- Mutual will
- Mirror/reciprocal will
- Joint will
Such wills are typically made by couples to protect each other and young children in the event that one party or both parties pass away. Normally, the wills provide for the surviving spouse to inherit the entire estate when his/her spouse dies.
The surviving spouse then has the right to use the property however he/she chooses, but after the survivor passes on, the remaining estate will be distributed to the beneficiaries according to the will.
For more information, you may wish to download our free guide to will-making here:
Mutual wills are usually made by two people pursuant to a separate agreement between them to make the wills and not to revoke them without the consent of the other. Each party would have a separate will making provisions for the other party on substantially similar terms, dealing with the same property. Parties will also have a binding contract between them, which will typically provide that:
- Each of the parties will leave their property to mutually agreed beneficiaries;
- Neither party will revoke or make any change to their will without the consent of the other during their joint lifetimes; and
- Upon the death of one party, the survivor will not revoke the will or alter it so as to change the mutually agreed beneficiaries.
The agreement can be made orally or in writing on a separate document. It is advisable for parties to write the agreement on a separate document and have the terms reflected in the wills to avoid future problems of proving the agreement.
It is also advisable for parties to make it clear in writing that the wills are mutual wills to ensure that the beneficiaries, upon the death of the first party, are aware that they are benefiting under a mutual will. This would allow beneficiaries to know their position in case the surviving spouse makes a new will with no reference to the mutual will.
Recently, there was a case of a mutual will taking precedence over a simple will.
In 2001, a father, then 68, and a mother, then 64, had made mutual wills before their lawyer.
The terms of the Wills are as follows:
- Younger son: 35%
- Three daughters: 10% each
- Grandson: 35%
- Older son: 0%
The couple agreed not to alter the wills and named their youngest son and eldest daughter as the executors and trustees of the wills. Clause 2 of the mother’s Mutual Will also provides that the Mutual Wills are irrevocable.
When the father died in 2004, the younger son did not produce the wills as he had forgotten about it and assumed that all the assets would be passed to the mother.
In 2017, the eldest daughter brought the mother to a lawyer to make another will. This Will stated that all of her properties would be split between the eldest and youngest daughters, while the other siblings would get $1 each.
In 2019, the mother passed away, and the youngest son filed a suit for a declaration that the mutual will that the parents executed in 2001 was the last Will and testament of the mother, and that the grant of probate to the eldest and youngest daughters in respect of the 2017 Will be revoked. The pair of sisters then counter-claimed for an order that the 2017 Will was the last Will and testament of the Mother.
The Judge found that the mutual wills were validly executed in all respects and there are no grounds to suspect that the testators were mentally unsound. Furthermore, the terms of the Mutual Wills are fairer than the terms of the mother’s 2017 Will.
Thus, the Judge ruled that the mutual will executed in 2001 must take precedence over the 2017 Will of the mother.
This case highlights that a valid mutual will cannot be revoked or changed, even if a new will is made later on.
A mirror will is a will made by two people, often with similar terms in two separate wills. Unlike mutual wills, no agreement between parties is required for mirror wills to be made. Parties making mirror wills must fully accept the right of the survivor to change his or her will as and when they see fit.
Mirror wills need not be identical, but should mirror each other precisely in terms of both testators’ mutually agreed wishes in all the important areas relating to estate administration and inheritance issues. A mirror will enables parties to state who they both wish to benefit from specific possessions or gifts and who should otherwise benefit from their individual estates.
A joint will is a single instrument made by 2 or more persons, which will serve as their separate wills. On the death of the first person, the survivor(s) becomes a trustee of all the assets named in the joint will. However, the survivor(s) will dispose only the deceased’s share(s) of these assets in accordance with the will’s instructions.
Changes to, or destruction of, the joint will require all testators’ consent.
Some reasons why people might consider making a joint will are:
- Jointly appointing someone to distribute their assets
- Where they are considering making a mutual will.
However, making a joint will is not advisable because it is unclear whether Singapore courts will uphold and enforce joint wills. Joint wills are also more difficult for a testator to change compared to if he were to make a regular will.
Joint wills may lead to inconvenient complications upon the demise of one testator, such as splitting of assets.
You may also find it difficult to find a law firm which provides the service of drafting joint wills.
Advantages and Disadvantages of Mutual/Mirror/Joint Wills
|Costs||Flexibility in providing for changing circumstance||Ability to provide for children from previous relationships|
|Mutual will||Most costs involved.
Requires at least three legal documents.
Agreement has to be terminated before any alteration can be made.
|Better able to.
Surviving spouse is prevented from altering the will to exclude children from previous relationships.
|Mirror will||More than joint will but less than mutual will.
Requires at least two legal documents.
Does not require any consent and not bound by any agreement to not alter the will.
|Least able to.
Surviving spouse has the right to alter the will to exclude children from previous relationships.
|Joint will||Least costs involved.
Requires one legal document.
Requires consent of both parties to alter the will.
|Better able to.
Surviving spouse is prevented from altering the will to exclude children from previous relationships.
Revoking a Mirror/Joint/Mutual Will
Revoking a will means cancelling the will and it can be done by:
- Writing a new will;
- Expressing an intention to revoke the will in writing; or
- The burning of, tearing of, or otherwise destroying the will by the testator (person who made the will) with the intention of revoking it.
Revoking a mirror will
In the event when one spouse dies, the mirror will would enable the surviving spouse to revoke the will without any legal consequences. Since parties are not bound by an agreement or contract to not revoke the will without the consent of the other, the surviving spouse would be free to revoke his or her will as and when he or she sees fit. Hence, if any party makes a new will after making a mirror will, the Court will deem that as a revocation of the mirror will and uphold the new will.
Revoking a joint will
As a joint will is a will written by two parties and represents the will of both parties in a single document, consent of both parties needs to be obtained before the will can be revoked. The surviving spouse is not free to revoke the will as and when he or she sees fit. If any party writes a new will after writing the joint will, and express consent was not given by the other party, the Court will not uphold the new will. The Court will not consider the joint will revoked unless express consent has been given by the other party.
Revoking a mutual will
As for mutual wills, the surviving spouse is also not free to revoke the will because parties have an express agreement with each other not to revoke the will. The beneficiaries of the will have the right to sue the surviving spouse for a breach of contract (on the basis of the agreement) and a breach of trust (on the basis of the will), if the surviving spouse seeks to revoke the will after the death of his or her spouse without obtaining consent prior to his or her spouse’s death. If the surviving spouse makes a new will without terminating the agreement, the Court will not uphold the new will and instead impose a trust on the property specified in the will to prevent the revocation of the will. That means that the spouse owes a duty to take care of the property for the beneficiaries and pass it to them as according to the terms of the mutual will.
Couples wishing to find out more about the different type of wills and what is the most appropriate type of will for their circumstances can contact our wills lawyers for more information.
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