What if the deceased parent changed his/her Will after the earlier death of their spouse?

Written by Terry Johansson | 13th September 2013

There are a lot of couples who make Wills at the same time as each other, and in identical terms. These Wills usually state that the deceased’s estate will pass to the surviving spouse and then to their children when the surviving spouse passes away. These are often called ‘mirror’ Wills.

But what happens if the surviving spouse remarries and changes his/her Will so that the new spouse will inherit their entire estate rather than his/her children? Is the surviving spouse able to do this?

A surviving spouse is permitted to change their mirror Will at any time.

However they cannot do this if he/she entered into a ‘mutual’ Will with their deceased spouse. A mutual Will is one that contains an agreement that neither spouse shall revoke or change their Wills. These types of Wills have been compared to a contractual agreement.

When the first spouse dies without having changed his/her Will, if there was a mutual Will, then  a binding obligation arises against the surviving spouse not to contest the Will.  If the surviving spouse changes his/her Will in these circumstances, a claim may be brought on the surviving spouse’s death to uphold the first Will.

This does not apply to a mirror Will. A surviving spouse is free to alter a mirror Will at any time. In practice it seems that most identical Wills are mirror Wills, and not mutual Wills.

CWPL is able to provide you with advice about whether a Will is considered to be a ‘mutual Will’, and assist you in making a claim if a mutual Will has been changed.

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