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What if we make mirror wills and die at the same time?

Jump and another v Lister and another [2016] EWHC 2160 (Ch)

Mirror wills are almost identical wills usually made by a married couple or civil partnership. In the event of the death of one spouse, they are able to leave their estate to the other and provide for children in exactly the same manner through mirror wills.

A standard survivorship clause in a mirror will provides that a spouse or other beneficiary must outlive the deceased by a specific period. The law provides that if both spouses were to die at the same time, it is assumed the younger spouse survived the older. In this case it was impossible to determine which spouse died first and the High Court has held that the standard survivorship clause in a mirror wills meant the gifts by each spouse to the other did not take effect.

The standard survivorship clause provided that the surviving spouse was to survive the deceased spouse by 28 days. The court has held that this clause has overridden the law provided for such circumstances so that neither spouse could benefit.

This case shows that unforeseen consequences may arise when standard wording is inserted into wills. Had the clause included a remedy should these circumstances arise, there would not have been an issue for the court to pass a judgment which it appears was contrary to the intentions of the creators of the wills.

As a result of the court’s interpretation of the standard survivorship clause in the older spouse's will, it held that the cash and specific gifts passing under both wills were effective so that those beneficiaries benefitted twice.

Unfortunately, the court was presented with a construction application which means the claimant requested the court to construe the intention of the will. The judge indicated that the application that should have been made was for ratification of the wills. Had this been the case the judge would have inserted the appropriate remedy into the standard survivorship clause for the circumstances of their death and allowed the gift to pass as per their intention.

Top tip: If you intend on creating a mirror will, with a survivorship clause, ensure that the survivorship clause includes a remedy if you should both die at the same time. It is also important you make the correct application to the court in determining the outcome of a will in question.

For tax law advice please contact director Graeme Perry in our Tax & Private Client department.