When mirror wills don’t reflect your wishes

When it comes time to writing a will spouses often want to “keep it simple” and make the decision to have identical or mirror wills. These wills often provide for the estate to be gifted to the surviving spouse and when the second spouse has died then to the children evenly.

Whilst this can be sufficient in some cases, problems arise when the surviving spouse decides to re-partner after the death of the first spouse. Unless special arrangements have been made to preserve the estate for the benefit of the children the surviving spouse is free to change their will and gift everything to their new partner.

In the case of Haggarty v Wood[2013] QSC 327 the deceased and his first wife signed mirror wills in 1991 leaving their entire estate to each other and if they did not survive each other then to their son and daughter.
The deceased wife died in 1997 and the deceased began a new relationship and made a several new wills from 2002 to 2010. The deceased’s final will provided for the whole of his estate to pass to the new spouse. When the deceased died his son began proceedings to try and recover the estate. He claimed firstly that his father was unduly influenced by the new spouse to change his will, this claim was unsuccessful. The son the attempted to enforce a contract between his parents as evidenced by their 1991 wills. He was also unsuccessful in this claim.

In this case not only did the son lose the entire estate of his parents to a late entrant to the family, he was also awarded to pay the new spouse’s legal cost in the court case.

When drafting your will there are ways that you can ensure that your estate passes eventually to your children. A mutual will agreement can be entered into to bind the surviving party to the will that has been jointly written. Or a Testamentary trust which arises upon the death of the testator, and controls the estate in a predetermined fashion. If either of these options had been explored the case of Haggarty v Wood would have had a much different outcome.

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