It is quite common for spouses to enter into what is known as a ‘mirror will’, which essentially provides that their estate will go to each other when they die, and when the remaining spouse passes away, it will go to their children.

However, what many people don’t realise is if they do not put special provisions in place, the surviving spouse is free to change their will after their spouse dies and may not leave any of the estate to the children.  There are many situations which can arise which can cause the remaining spouse to change their will, including if the remaining spouse enters into a new relationship or becomes re-married at a later date. 

In the recent Supreme Court case of Haggerty v Wood [2013] QSC 327, mirror wills were executed by the deceased and his first wife, leaving their entire estate firstly to each other, and if they did not survive, then equally to their children.  However, after receiving the entire estate upon his wife’s death, the remaining spouse entered into a new relationship and made a new will which left his entire estate to his new spouse and nothing to the children.

After he passed away, his son commenced proceedings amongst other things, seeking a declaration from the Court to enforce the original wills made by the parties which stated that after both passed away, the estate was to go equally to the two children of the marriage.

However, the Court struck out his claim and determined that there was no agreement between the deceased and his first wife not to change or revoke their wills.

There are avenues available to children in these circumstances to make a claim for provision against the estate, however there are strict timing and eligibility issues which need to be satisfied, and the process can be expensive and drawn out.

This is a timely reminder that if you are executing mirror wills with your spouse, and intend on protecting the interests of your children after you pass away, then you should obtain legal advice prior to executing your will as  there are estate planning tools such as testamentary trusts and mutual wills which can avoid this problem occurring in the future.  

Affinity Lawyers is well placed to provide you with tailored legal advice in relation to wills and estate planning so please do not hesitate to contact one of our experienced Gold Coast Lawyers today on 5563 8970 to arrange a no-obligation appointment.