Putting “joint wills” in the past

You may have noticed from the Camberwell House Wills Questionnaire that we no longer offer joint wills.  These are becoming increasingly rare simply because they aren’t a good idea in this day and age, even if they ever were.

What is a “joint will”?

A joint will is a will signed by two people, usually a married couple: it sets binding terms on either or both of their estates.  They usually are set up so that: (a) when one spouse dies, the other inherits; and (b) if both spouses die, or if the surviving spouse later dies, then their children (or designated beneficiaries) inherit.   The reasons for this are straightforward enough: both parties while alive want to lock in their estate distribution that cannot be changed after the first spouse’s death.  Put more colloquially, nobody wants to die worried that their surviving spouse leaves the children’s money to whatever second spouse comes along (sometimes with their own children).

Most joint wills contain clauses mandating that neither spouse can change or revoke the will alone, nor after the first spouse’s death.  An ordinary will is always revocable, but a joint will binds exactly like a contract.  (Such a changed will may nonetheless be made subject to a court-imposed trust, as detailed below.)

It is best to here define “mirror wills” and “mutual wills”.   “Mirror wills”, as the name implies, are two wills which mirror each other: they are essentially identical, save for mirror terms (husband leaves to wife, wife leaves to husband, etc.).  Mirror wills do not bind each other, nor do they purport to.  Mutual wills are wills intended to bind each other, and they often have specific language regarding that mutuality.   Mutual wills don’t have to be mirror wills, though in ordinary practice they usually are.  Mutual wills are often also linked by a domestic contract which more formally and irrevocably lock them in.  Note, though, that even without such a specific contract, the court may enforce the mutuality.  A person never loses the right to revoke their will and produce a new one with new terms, but that estates assets and/or value might be subject to a “constructive trust”. The new beneficiary thus might have receive the money as of right, but have to hand over some or all of it to the people designated in the now-revoked will.

Why are joint wills a bad idea?

Few lawyers draft joint wills these days, finding separate wills and, if necessary, specific trusts to be better tools to achieve the client’s goal.  Joint wills are a too-inflexible option and may indeed bind property that the surviving spouse legitimately needs to use or change or sell.  The circumstances, assets and law extant when the parties signed the joint will may have radically changed in the years after the will’s execution, and after the death of the first spouse.

In the end, if the two testators wish to bind each other then there are other, better tools to do so, and they should be chosen.

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