Mirror Wills – ‘backstop provisions’ for couples

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Mirror wills backstop

Mirror wills are matching wills made (typically) by couples where the terms are the same. 

One of the defining elements of mirror wills is the ‘backstop’ provisions – sometimes called the ‘disaster scenario’.   For the purposes of this illustration, lets assume mirror wills are being prepared for a married couple with minor children.

Everything to each other

In this scenario, the typical first provision is for the surviving partner to take everything, with them also acting as executor.

So, this is where one of the two dies, leaving a surviving spouse and children.

Failing that to children

Typically, the next provision would be for the children to inherit equally.  Unless the will states otherwise, this would be assumed to be at 18.  You can extend this if you wish, by the will stating an older age.

Alternative executors would need to apply now, and guardians appointed too.  It is a good idea to split these roles.

So far so good……

So, up to now, both wills have ‘mirrored’ each other, and everything is in order.  But what about a scenario in which both parents and all children die – then what?

Backstop Provisions – how to mirror

Let’s take the example we have, and say that each parent has two siblings of their own, and should both of the couple die, and all of their children, then they would each want their siblings to benefit in this ‘disaster scenario’.

So, one might assume that the natural thing to do would be for them to simply include their own siblings in each of their own wills.  Makes sense!  But, there is a potential problem with this.

Younger inherits everything

Remember that we are talking about a situation where the whole family die together – an accident perhaps.  Should this happen, all assets would end up in the estate of the younger of the two, and then pass under the terms of their will.  This is because the law states that where time of death is the same, the younger will be assumed to have survived.  In that moment, everything passes to them (the younger).

So, if the two mirror wills only make provision for the family of the testator, the siblings of the older partner would get nothing!

So how can you get over this?  Well, there is one of two things to do:-

  • Mirror provisions in both (ie for both sides of the family); or
  • Survivorship clause
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Backstop provisions (‘disaster scenario’) covers a situation where all principle beneficiaries pass together.

Mirror Backstop Provisions

Rather than having separate provisions for each side of the family for the individual testator, one option is to have both in both.  So for example, it could look something like this:-

I GIVE the rest of my estate in equal shares to those of my siblings and those of the siblings of my wife JOSEPHINE BLOGGS living at the date of my death

That way, wherever the estate ends up in the ‘disaster scenario’, it ends up with the respective side of the family in the correct amounts.

Survivorship Clause

Another way of avoiding everything going to the family of the younger (ie where both spouses and all children die together) is to include what is called a ‘survivorship clause’.  This is far from fool proof given the possible scenarios in a disaster situation.

A survivorship clause seeks to remove the concept of everything passing to the younger when there is a death together.  Instead, the principle gift to the surviving spouse is made conditional upon the spouse surviving for a set period (often 28 days).  This removes the ‘roll up’ effect where spouses die together and everything ends up passing under the will of the younger given the rule where the younger is deemed to have survived longer.

A general survivorship clause might look something like this:-

“Any beneficiary who is not proved to have survived me by [28] days shall be treated as having died before me

Alternatively, the survivorship provision can be made as part of the actual gift in question:-

PROVIDED THAT she survives me by [28] days then I GIVE the whole of my estate to my wife JOSEPHINE BLOGGS

Older dies intestate

A small but noteworthy note is that where a married couple die together, but the older is intestate (ie does not have a will), then the younger is deemed to have died first.  And, the rules of intestacy will apply to the distribution and administration of the estate of the older of the married couple.

> Read more about the rules of intestacy

What should I include in my Mirror Will?

We have lots more related information that you may find helpful, including:-

Wills Solicitors

If you would like help with mirror wills, or any other aspect relating to wills, do reach out to our expert Wills Solicitors.  You can email us at wills@qlaw.co.uk, post a comment below, or call our wills hotline 03300 020 859.

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