Changing a mirror will after spouse’s death

This is one of the most common and important questions in wills and succession law, and the answer depends critically on exactly what type of arrangement the spouses had in place.

The short answer: In most cases, yes, a surviving spouse can change their own will after the first spouse dies. But there are important exceptions.

Ordinary mirror wills:

Mirror wills are simply two separate wills that happen to have matching or reciprocal terms, typically each spouse leaving everything to the other and then to the children. Despite the common assumption that they are somehow binding, ordinary mirror wills are just two independent wills. Each spouse is free to revoke or change their own will at any time, including after the other spouse has died.

This means the surviving spouse can make a completely new will, leaving the estate to different people, cutting out children, adding new beneficiaries, or anything else they choose. There is no legal obligation to stick with the terms of the mirror will once the other spouse has passed away.

This comes as a shock to many families, particularly where the first spouse left everything to the survivor on the understanding that it would ultimately pass to the children.

Mutual wills, which are different:

Mutual wills are a special and much rarer arrangement. These arise where two people make wills on the basis of an agreement, whether express or implied, that neither will revoke or alter their will without the consent of the other, and that the survivor will be bound by the agreed terms after the first death.

If a valid mutual wills agreement exists, a constructive trust is imposed on the estate of the surviving spouse when the first spouse dies. The leading case is Re Cleaver (1981). The effect is that, although the surviving spouse can technically make a new will (because you cannot legally prevent someone revoking a will), equity will intervene and the assets caught by the mutual wills arrangement will be held on trust for the agreed beneficiaries.

However, courts are slow to find that a mutual wills agreement exists. The bar is high. The mere fact that wills are in mirror terms is not enough. There must be clear evidence of a binding agreement not to revoke. Solicitors' file notes, correspondence, or attendance notes are often the key evidence. Without strong proof, a claim based on mutual wills is difficult to establish.

Proprietary estoppel and other claims:

In some situations, even where there are no mutual wills, a child or other intended beneficiary may have a claim based on proprietary estoppel if they relied to their detriment on an assurance that they would inherit. For example, a child who worked on the family farm for years for low pay on the promise that they would inherit the property. This is fact-specific and requires clear evidence of an assurance, reliance, and detriment.

Practical implications:

1. If you are making mirror wills and want them to be binding after the first death, you need to discuss mutual wills expressly with your solicitor and ensure the agreement is clearly documented. Be aware that mutual wills come with significant drawbacks, particularly inflexibility for the surviving spouse.

2. If you are a surviving spouse and want to change your will, you are almost certainly free to do so unless you entered into a mutual wills agreement. You should get a copy of any earlier attendance notes or correspondence from the solicitor who prepared the original wills to check what was discussed.

3. If you are a child or beneficiary who is concerned that a surviving parent may change the will, the key question is whether there was a mutual wills agreement. If there was not, the surviving parent is entitled to change the will, and there is very little that can be done to prevent it.

4. An alternative to mirror wills or mutual wills is the use of a life interest trust in the will, where the first spouse to die leaves assets into a trust giving the survivor a right to use or benefit from them during their lifetime, with the capital passing to the children on the survivor's death. This protects the ultimate beneficiaries without restricting the survivor's ability to deal with their own separate assets.

Key point to remember:

The word "mirror" describes the form of the wills, not their legal effect. Mirror wills do not create any binding obligation on the survivor. Only a properly evidenced mutual wills agreement, or a trust structure, will achieve that protection.

If you can tell me more about the specific situation you are dealing with, I can give you more targeted guidance.