Married couples often coordinate their estate planning, which usually involves establishing a will to ensure their assets are distributed according to their wishes. Mirror wills are one option for couples. This type of will essentially creates two identical documents, one for each spouse, with the idea that each spouse will carry out the other’s wishes. However, mirror wills can become complicated if one spouse decides to make alterations. This leaves children, particularly stepchildren, wondering if they have any legal recourse to challenge these changes.
What Is a Mirror Will?
A mirror will is an estate planning solution typically used by spouses, in which each spouse has an identical will to the other. The language in both documents provides instructions on how assets will pass to one spouse in the event of the other’s death, as well as who the beneficiaries are and what they will receive after both spouses have passed.
However, mirror wills are not as straightforward as they may seem. Unlike other wills, mirror wills are not a binding contract, meaning one spouse is free to modify their will, whether the other spouse is alive or deceased. This means that each spouse retains full control over their own will under BC’s Wills, Estates, and Succession Act (WESA), and the surviving spouse can change their will even after inheriting the estate.
Can a Surviving Spouse Change a Mirror Will?
Yes, a surviving spouse can change a mirror will following their spouse’s death. These situations can lead to family disputes. Let’s review the following example.
A married couple creates mirror wills that pass along each other’s assets to one another, so should one spouse pass, the other inherits all assets. The husband has two children from a previous marriage, and the couple also shares children together. In their mirror wills, they agree to pass along certain gifts to their joint children as well as the husband’s children from his prior relationship after both spouses have passed. When the husband passes away, the wife inherits his assets.
In this example, the wife now has full legal authority over the estate she inherited. The widow then changes her will to ensure her assets only pass to her biological children. She has effectively changed the mirror will to disinherit her stepchildren entirely. This type of situation is common in blended families and often leads to disputes when children from a previous relationship believe they were intended beneficiaries.
Can a Mirror Will Be Contested?
A mirror will, like others, can be contested by individuals who are directly affected by a will or the changes made to it. Even if spouses originally agreed to mirror wills, each person can legally change their will; disputes can arise when beneficiaries feel those changes are unfair.
A will may be challenged on several grounds, including when the will-maker:
- Lacks the mental capacity to make, amend, or execute a will
- Did not create the will freely or under valid circumstances
- Was unduly influenced by a third party and therefore did not exert free will
- Did not legally sign the will, resulting in a forgery or fraudulent signature
Additionally, under section 60 of WESA, spouses and children may apply to vary a will if they believe the deceased did not make adequate provision for them. However, stepchildren generally do not have automatic standing to make a will variation claim unless they were legally adopted or financially dependent on the deceased.
Mirror Wills and Mutual Wills: What’s the Difference?
Mirror wills are often mistaken for mutual wills, including in situations where former beneficiaries are contesting a will. A mutual will is like a mirror will but includes a binding agreement that neither spouse can make any alterations to the document, regardless of whether the other spouse is alive or deceased. Changes can only be made if both spouses, while living, agree on the same amendments. Both mirror and mutual wills must still comply with WESA signing and execution requirements to be valid.
When to Work with an Estate Litigation Lawyer
If you believe that a will does not reflect the deceased’s intentions, or that you were unfairly excluded from an inheritance, it’s important to seek professional guidance as soon as possible. At Stephens & Holman, our estate litigation lawyers help clients navigate the complex process of contesting a will, ensuring your rights are protected and your concerns are addressed. We can review your situation, explain your legal options, and guide you through negotiations or court proceedings if necessary, providing clear advice and advocacy every step of the way. Contact us today to learn more or to find an office near you.