Are mirror Wills a good idea? A High Court probate battle with huge implications for the law suggests caution

When Angela and John Dunbabin decided to make mirror Wills leaving everything to their four sons in equal shares, the way forward in terms of inheritance appeared straightforward.

However, when John died in 2019 three years after Angela it turned out he had made a new Will. This changed everything, leaving 75% of his estate to one son and just 25% split between the remaining siblings.

Perhaps unsurprisingly, feathers were ruffled and a family were left divided - the last thing anyone wants after their death.

What is the background to this case?

The couple had been married for more than 60 years and bought their house in 1983. The legal title was put in their joint names but it wasn't stated at the time whether they owned the property as beneficial joint tenants or tenants in common.

This was crucial to the case when it came up before Judge Paul Matthews at the High Court in Bristol.

Why did the type of tenancy matter?

These two types of tenancy mean vastly different things in terms of ownership. A beneficial joint tenancy means the parties own the property together and when one person dies, the surviving owner retains full ownership.

When the property is owned as tenants in common, this means each party owns a specific share of the property which goes into their estate when they die.

What did the mirror Wills say?

John and Angela made two sets of mirror Wills, once in 2003 and again in 2008. These Wills stated that if either of them died, the other could continue to live in the house for as long as they wanted or needed to before it would be inherited by their four sons in equal shares.

What exactly is a mirror Will?

Mirror Wills are executed by two people, most often spouses, and contain nearly identical provisions. In short, the contents of one spouse's Will mirrors the contents of the other's.

However, in many cases, it is entirely legal for a surviving partner to later rewrite the terms of the mirror Will even if that means disinheriting children and leaving everything to someone entirely different.

What went wrong?

After Angela died, John did indeed make a new Will which he felt more fairly reflected the care and effort one son particularly had put in to looking after him and his wife in their final years.

But this new Will meant the other three sons got significantly less which they argued was not what their parents had intended when they made their mirror Wills.

What did the judge decide?

Judge Matthews had to determine whether the joint tenancy had effectively been ended by the mirror Wills made before Angela died.

If so, the right of survivorship would not apply and Angela's half share of the property would go to those named in her Will rather than to the son named in the new Will that John made after her death.

Judge Matthews said this was the rightful outcome and what Mr and Mrs Dunbabin had intended when they made their mirror Wills.

Implications for the law going forward

In the past, when people wanted to legally bind their spouse to stick to what was agreed after their own death, specialist lawyers have always advised setting up a trust at the same time. This was to guard against the second person to die changing their Will later and leaving everything to someone else.

This recent case potentially changes this position and suggests that writing mirror Wills alone is in fact enough to protect your assets without taking further measures at the time, something you should always check with a specialist lawyer.

Get in touch

If you would like to contest or defend a Will, the help of a specialist lawyer is vital as every case needs to be looked at on an individual basis.

For help and advice, please contact Wards Solicitors' Contentious Trusts and Probate Team.

Our lawyers are members of the Association of Contentious Trusts and Probate Specialists (ACTAPS), the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and the Law Society's Probate Panel. All demand expertise and up-to-date knowledge from their members.

The team is praised by the Legal 500 Guide for 2022 for its broad contentious trust and probate practice with a particular emphasis on Inheritance Act and Court of Protection matters.

Head of the team, Elizabeth Fry is highlighted as a key lawyer specialising in high value and multi-jurisdictional matters.

• If you want to make or update a Will, please contact our Wills, Probate and Mental Capacity team.