Can a mirror Will be contested?

Trainee contentious probate solicitor, Melissa Duncan, takes a look at whether a mirror will can be contested.

When it comes to estate planning, a common way for couples to ensure their assets are distributed to their loved ones is by creating "mirror Wills".

These are identical Wills which make provision for their entire estate to be left to their partner, and upon the death of the partner, the estate would then go to chosen beneficiaries (most likely their children).

Whilst they are typically a straightforward way of ensuring assets are passed as intended, they are not immune to challenges.

In this article we will explore common problems that can be created by mirror Wills, and how they may be contested.

Potential disadvantages of mirror Wills: things to consider

There is a common misconception that mirror Wills create a binding obligation and that they cannot be revoked or changed. Typically, if you make a mirror Will, you do so on the assumption that your wishes will be honoured to ensure any children inherit the estate once both testators die.

However, the testator is free to revoke or change the terms of their mirror Will at any time after their partner’s death i.e. after they have already inherited all of their deceased partner’s estate.

With the rise of diverse familial structures due to second marriages and blended families, mirror Wills can create problems within that family structure. We are finding that, increasingly, children of the deceased partner learn that the surviving partner, their step-parent, has changed their Will to exclude the step-children.

In this case, the estate they are excluded from essentially makes up the estate of their step-parent and their deceased biological parent.

A disappointed beneficiary would only be able to recover what would have been their rightful share if there was evidence of an agreement between the couple to not revoke their mirror Wills upon the death of either partner.

How can a mirror Will be contested?

If you are a disappointed beneficiary and find yourself without a share of the estate, due to the surviving partner subsequently varying their Will, you may be wondering how you can contest it.

You must be directly affected by a Will in order to contest it. In this case, if you were to inherit under the previous mirror Will then you will be eligible to contest it.

A Will can be challenged if any of the following apply:

• The testator lacked the mental capacity to understand the nature and effect of their Will when making and/or executing it.
• The testator was unduly influenced by someone into making or executing the Will.
• The Will was not validly executed.
• The testator did not hold the requisite knowledge and approval of their estate or of the contents of the Will at the time of making or executing it.
• The testator’s signature on the Will was forged, or the person acting for the testator in preparing the Will acted fraudulently.

Doctrine of estoppel claims

Alternatively, a disappointed beneficiary may be able to bring a claim under the doctrine of estoppel if it has been indicated by the surviving spouse that they would inherit from their estate.

To be successful in bringing a claim you must be able to establish that you were promised you would inherit from the estate, you relied on that promise to your detriment, and you have suffered loss because of this reliance.

Helpful evidence to establish an estoppel claim in this case would be written communications between the biological parent, step-parent and the children confirming that the couple have made mirror Wills in the belief that the surviving spouse would not seek to change their Will following the death of one of them.

Inheritance (Provision for Family and Dependants) Act 1975

Further, you may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, to be successful in bringing a claim under this statute you would need to establish financial dependence on the deceased immediately prior to their death. In the case of adult children, this can be difficult to prove.

At Holmes & Hills LLP we have a specialist Contentious Trusts & Probate team to assist you in navigating any dispute regarding Wills, probate or estate administration. Contact us to speak to a specialist solicitor regarding challenging a will or to contest a probate matter.