Mirror Wills, Remarriage, and Disinheritance – The horror story that just keeps on repeating.
- CHC Legal
- 5 days ago
- 7 min read
Updated: 4 days ago
Are mirror wills always such a good idea?
They’re certainly very common - in fact one of, if not the, most common estate planning tool for couples in the UK today. But are there circumstances when they’re really not such a good idea? And, if so, what are the alternatives.
Let’s take the following example – it’s a fictional scenario but as you will see from the many cases below – some or all of the key elements of it keep cropping up year and year.
The Structural Trap of Remarriage
No litigation required — Wills simply fail to protect the children
A classic and very common scenario:
Husband (A) and wife (B) are married with children (X), (Y) and (Z)
Husband (A) runs a successful business, and the family acquire a substantial property worth over £1million from his hard work.
Husband (A) and wife (B) make mirror wills, each leaving everything to the other - one of the most common everyday occurrences in modern estate planning.
Husband (A) dies and his wife (B) gets everything as per the mirror wills.
After a few years, Wife (B) remarries to new husband (C).
Wife (B) and new husband (C) also make mirror wills, each leaving everything to the other, but also including (X), (Y) and (Z) as reserve beneficiaries after the deaths of both (B) and (C).
Wife (B) dies in a car accident shortly afterwards.
New husband (C) now inherits everything as per (B)'s will.
The years pass and new husband (C) makes a new will which leaves everything to his own children (P) and (Q) from his first marriage.
New husband (C) eventually also dies and his children (P) and (Q) get everything.
(X), (Y) and (Z), the children of (A) whose hard work bought the big house in the first place, get absolutely nothing.
This is not a drafting failure — it is a structural failure. The making of mirror wills is very common (the norm, in fact) but is it really a good plan? Not in this case, it seems.
Why a lifetime trust would have helped here instead of mirror wills.
A trust could have:
Provided for widow (B) for life (even allowing (C) to live with her)
Preserved the house, and (A)’s capital, for his own children (X), (Y) and (Z)
Prevented diversion of assets through remarriage to (C)
As the house (or at least half of it) would have been in trust for (X), (Y) and (Z), the marriage of (B) to (C) would not have resulted in (P) and (Q) getting everything.
But how often does something like this actually happen in reality?
As you will see, the answer is: too often.
1. Healey v Brown [2002] EWHC 1405 (Ch)
Matching wills, a later transfer, and an unexpected result.
A good example is the case of Healey v Brown [2002] EWHC 1405 (Ch). A husband and wife made matching wills and intended that, after both had died, a particular flat would pass to the wife’s niece. But after the wife died, the husband transferred the flat into joint names with his son. When the husband later died, the son took the property under the survivorship rules instead – as the son was joint tenant with his father, when his father died the flat just automatically passed to him. The intended beneficiary was then forced into costly litigation.
The Legal Issue
The case raised the question whether matching wills, coupled with an apparent agreement as to the ultimate destination of the property, were enough to bind the survivor. The difficulty was that mutual wills are a narrow and technical doctrine, and where land is involved, the legal position becomes more complicated still.
Why This Case Matters
The case shows the danger of assuming that matching wills, or even a promise not to change them, will always be enough. Once the survivor has full control of the property, the original plan may be defeated or may only be recoverable through complex litigation.
Why a lifetime trust might have helped: a trust could have allowed the survivor to benefit during life while protecting the underlying capital or property interest for the intended beneficiary. That is a planning inference rather than a statement of the court, but it is the practical lesson the case strongly suggests.
2. McLean v McLean [2023] EWHC 1863 (Ch)
Mirror wills, blended families, and a warning ignored.
A recent High Court case shows with unusual clarity how easily a straightforward “leave everything to the survivor” arrangement can fail in a second-family context.
In McLean v McLean, a husband and wife made mirror wills leaving everything to each other and, on the second death, dividing the residuary estate equally between their four children. Three of those children were the husband’s children from an earlier relationship; one was the wife’s son. When the wills were drafted, the solicitor expressly raised the risk that if the husband died first, the wife would remain free to change her will later and leave everything to her own son. The husband said he trusted his wife implicitly after 45 years of marriage. That trust proved misplaced. After his death, the wife changed her will, effectively disinheriting her three stepchildren.
The Legal Issue
The issue was not whether the later will was valid on its face. It was whether the earlier mirror wills were in fact mutual wills creating a binding obligation on the survivor not to change the agreed destination of the estate after the first death. The High Court held that they were not. The evidence showed trust and expectation, but not the kind of clear reciprocal agreement needed to create a binding mutual wills arrangement.
Why This Case Matters
The case is a powerful example of a structural weakness in simple wills planning. The difficulty was not poor drafting in the ordinary sense. The problem was that the first death transferred ownership outright to the survivor. Once that happened, the first spouse’s intentions could only survive if the law was willing to find a binding mutual wills contract. The court was not willing to do so. The result was that the intended destination of the capital changed completely.
Why a lifetime trust might have helped: a trust could have allowed the surviving spouse to benefit during life while preventing the underlying capital from being redirected away from the intended children. That is not a quotation from the judgment; it is the planning lesson the facts strongly support.
3. Charles v Fraser [2010] EWHC 2154 (Ch)
The family succeeded — but only after proving a technical doctrine.
At first sight, Charles v Fraser appears more reassuring. The intended beneficiaries were ultimately protected. But the reason it is relevant here is precisely that the protection did not come from the ordinary operation of mirror wills. Later commentary on the case explains that the court found two sisters had made mutual wills, so that the survivor was not free to revoke the agreed arrangement. The court was prepared to infer a binding agreement from the evidence and to hold that a constructive trust arose.
The Legal Issue
The key question was whether the wills were merely similar wills reflecting a shared intention, or whether they were part of a binding arrangement that neither sister could later defeat after the first death. That distinction is crucial. Ordinary mirror wills do not normally restrict the survivor’s freedom to change their mind. Mutual wills may do so, but only if the demanding legal requirements are satisfied.
Why This Case Matters
The case matters not because it shows that wills are always enough, but because it shows how much has to be proved before wills become truly restrictive. The beneficiaries only succeeded because the court, after death and after litigation, was persuaded that a narrow and technical doctrine applied. That is not a particularly secure form of family protection. If the intended destination of assets depends on later proving the existence of a mutual wills arrangement, the plan may already be too fragile for the purpose it was meant to serve.
Why a lifetime trust might have helped: a trust would usually establish the protective structure from the outset, rather than leaving the family to argue later about whether the survivor had been legally bound not to change their will. That comparison is a planning inference, but it is a fair one.
4. Naidoo v Barton [2023] EWHC 500 (Ch)
Even “stronger” wills planning can still unravel.
If McLean shows the weakness of simple mirror wills, Naidoo v Barton shows that even moving to a more restrictive mutual wills arrangement is not necessarily a comfortable answer. Commentators described the case as an important cautionary tale. The High Court set aside a mutual wills arrangement on the basis of undue influence, and in doing so clarified that the equitable test used for lifetime transactions, rather than the stricter probate test, applied to this question.
The Legal Issue
The court had to determine not simply whether there had been a mutual wills arrangement, but whether that arrangement should stand at all given the allegation of undue influence. The decision illustrates that mutual wills are not only technically demanding to establish; they may also become the subject of serious equitable challenge.
Why This Case Matters
This is important from a planning perspective because it shows that even an attempt to make wills more binding can produce rigidity, uncertainty, and costly litigation. Mutual wills are often described by practitioners as unusual devices that require great care and are frequently unsuitable. That does not mean they are never appropriate. It does mean that they are a poor candidate for routine family planning where the real objective is simply to provide for the survivor while preserving capital for chosen beneficiaries thereafter.
Why a lifetime trust might have helped: where the real intention is to separate immediate benefit from ultimate ownership, a trust will often provide a clearer and more robust structure than relying on a wills-based arrangement that later has to be defended, interpreted, or rescued in court.
Conclusion
The common problem in all of these cases is not necessarily defective will drafting – in fact, the wills in every case mentioned were perfectly well drafted and legal. More often than not, a problem arises because a will passes ownership outright on death, whereas a trust can distinguish between who may benefit now and who must ultimately receive the capital (or property) later.
So, in conclusion, for anyone who wants certainty that their wishes will be followed after their death, a trust set up during their lifetime, while they are still alive to see that what they want to achieve is actually accomplished (and often with an independent trustee who will still follow their explicit wishes even after their death), might well serve as the better option.
Really good article. Have taken note!