Joint Will

[hiriskpaul]

I have just got hold of my wife's uncle's will. It is unusual, or seems unusual to me. A single sheet of A4, self-written (on a computer) and covering both my wife's uncle and aunt! It reads as follows

This is the will of <uncle> and <aunt> of <address>

1. We revoke all previous wills.
2. All our estate to be left to whom outlives the other.
3. Our executors are to be <Ms Hiriskpaul> and <Mr Hiriskpaul> of <address>.
4. We wish our bodies to be cremated with no chapel or church ceremony.
5. Following both our deaths all assets are to be sold.
6. Then there are legacies for:

<5 charities listed, 1 for £200k, 4 for £100k>

The residue of our estate, after tax and expenses, should be divided into 15 equal parts for the following beneficiaries:

<Ms Hiriskpaul 2 parts>
<Mr Hiriskpaul 2 parts>
10 other beneficiaries listed receiving 1 or 2 parts each

Delete the part of anyone who dies before us thus reducing the total number of parts.

Date 10th February 2022

Signature <uncle signature>
Signature <aunt signature>

Signed by <uncle> and <aunt> in our presence and by us in theirs:

<2 witness signatures and addresses>

I have heard of mirror wills, but a joint will? Can that work?

My wife's aunt is still alive, but curiously is not an executor. The value and compexity of the estate is such that probate will be needed.

Is this will likely to cause problems?

[Clitheroekid]

I have heard of mirror wills, but a joint will? Can that work?

Yes, a joint Will is technically valid (assuming it complies with the formalities required for any Will) but they're extremely rare. In 40 years of practice I've never seen one, and no solicitor would ever recommend making one.

I assume they downloaded it off the internet, almost certainly from a US website. Unfortunately, it's quite common for people to obtain legal advice in blissful ignorance from a US website. Because the advice is written in English, and US legal terms relating to Wills and estates are the same or similar to those used in English law they don't realise that what they're reading only applies in the US and not here.

A joint Will is treated by the court as two separate Wills, so that on the first death it's submitted for probate and then again on the second death.

For an estate of that size it seems remarkable that they didn't have Wills prepared professionally. Still, as the old saying goes, the last toast at the lawyers' annual dinner is to the man who makes his own Will!

[stewamax]

Yes, a joint Will is technically valid (assuming it complies with the formalities required for any Will) but they're extremely rare. In 40 years of practice I've never seen one, and no solicitor would ever recommend making one..... A joint Will is treated by the court as two separate Wills, so that on the first death it's submitted for probate and then again on the second death.

Fascinating, CK - we learn something new every day. Would be an interesting challenge to write one if assets were not all held jointly and/or especially if some assets disposable by the second life could have been already distributed on the death of the first life...
As you say, a potential windfall for lawyers (and a 'Jarndice' for impatient second-life legatees)

[hiriskpaul]

I have heard of mirror wills, but a joint will? Can that work?

Yes, a joint Will is technically valid (assuming it complies with the formalities required for any Will) but they're extremely rare. In 40 years of practice I've never seen one, and no solicitor would ever recommend making one.

It appears to be a valid will, fulfilling the minimal requirements, written, sound minds, no coercion, signed, dated, witnessed not by beneficiaries, etc.

I assume they downloaded it off the internet, almost certainly from a US website. Unfortunately, it's quite common for people to obtain legal advice in blissful ignorance from a US website. Because the advice is written in English, and US legal terms relating to Wills and estates are the same or similar to those used in English law they don't realise that what they're reading only applies in the US and not here.

A joint Will is treated by the court as two separate Wills, so that on the first death it's submitted for probate and then again on the second death.

For an estate of that size it seems remarkable that they didn't have Wills prepared professionally. Still, as the old saying goes, the last toast at the lawyers' annual dinner is to the man who makes his own Will!

No idea where the template came from, quite probably off the Internet as you say. Unfortunately from the reading I have done on joint Wills there is nothing we can do about it now as the Will cannot now be revoked by the surviving spouse.

On a technical matter, how do you submit the same Will twice? The first time the Will is submitted it is kept and a grant of probate issued, so we will not have the original to submit again!

[hiriskpaul]

Yes, a joint Will is technically valid (assuming it complies with the formalities required for any Will) but they're extremely rare. In 40 years of practice I've never seen one, and no solicitor would ever recommend making one..... A joint Will is treated by the court as two separate Wills, so that on the first death it's submitted for probate and then again on the second death.

Fascinating, CK - we learn something new every day. Would be an interesting challenge to write one if assets were not all held jointly and/or especially if some assets disposable by the second life could have been already distributed on the death of the first life...
As you say, a potential windfall for lawyers (and a 'Jarndice' for impatient second-life legatees)

The assets are not all jointly held! Bank accounts and I think property is (need to check), but they each have 7 figure ISAs and a portfolio of shares (certificates) each, no shares jointly held as far as I can tell. ISAs cannot be jointly held in any case.

The joint Will is bizarre. It locks in the survivor as they are unable to make a later Will. That means that the wishes of the deceased cannot be easily broken. An alternative and more sensible way of going about this is via Trusts, but that is more complicated of course.

[Lootman]

The joint Will is bizarre. It locks in the survivor as they are unable to make a later Will. That means that the wishes of the deceased cannot be easily broken. An alternative and more sensible way of going about this is via Trusts, but that is more complicated of course.

What is it that specifically prevents the surviving spouse from writing a new Will? If it was later submitted for probate, would the Probate Office stop the process? Or would they not even think to check since these things are so rare?

A trust might not be needed. The obvious solution for the surviving spouse, if she doesn't like the provisions of the current will and cannot write a new one, would be to either gift the assets whilst she is alive. Or transfer the assets into a joint tenancy form of ownership with her beneficiary. (Any ISA would have to be liquidated as you note).

[hiriskpaul]

The joint Will is bizarre. It locks in the survivor as they are unable to make a later Will. That means that the wishes of the deceased cannot be easily broken. An alternative and more sensible way of going about this is via Trusts, but that is more complicated of course.

What is it that specifically prevents the surviving spouse from writing a new Will? If it was later submitted for probate, would the Probate Office stop the process? Or would they not even think to check since these things are so rare?

I really don't know why. Just something I have read online. Changes can be made by mutual agreement when both parties are alive, of sound mind, etc. but when one party dies the will is irrevocable.

A trust might not be needed. The obvious solution for the surviving spouse, if she doesn't like the provisions of the current will and cannot write a new one, would be to either gift the assets whilst she is alive. Or transfer the assets into a joint tenancy form of ownership with her beneficiary. (Any ISA would have to be liquidated as you note).

Yes, it hardly seems water tight to me.

[swill453]

What is it that specifically prevents the surviving spouse from writing a new Will? If it was later submitted for probate, would the Probate Office stop the process? Or would they not even think to check since these things are so rare?

I really don't know why. Just something I have read online. Changes can be made by mutual agreement when both parties are alive, of sound mind, etc. but when one party dies the will is irrevocable.

That would be bizarre. I don't see anything stopping the survivor writing an entirely new will, revoking all previous wills. Who's going to stop that?

In any case the survivor could remarry, automatically invalidating the will.

Scott.

[Dod101]

What is it that specifically prevents the surviving spouse from writing a new Will? If it was later submitted for probate, would the Probate Office stop the process? Or would they not even think to check since these things are so rare?

I really don't know why. Just something I have read online. Changes can be made by mutual agreement when both parties are alive, of sound mind, etc. but when one party dies the will is irrevocable.

That would be bizarre. I don't see anything stopping the survivor writing an entirely new will, revoking all previous wills. Who's going to stop that?

In any case the survivor could remarry, automatically invalidating the will.

Scott.

Obviously the deceased partner could not stop the writing of a new Will but maybe that is the point; the survivor entered in to a joint agreement and may feel that at the very least he/she is tearing up the wishes of the now deceased partner and that these wishes should be respected. I think I can see that. Whether there is anything in law to stop the survivor rewriting the Will is something else and as has been said if the survivor remarries the joint Will will presumably be invalid anyway.

Dod

[hiriskpaul]

What is it that specifically prevents the surviving spouse from writing a new Will? If it was later submitted for probate, would the Probate Office stop the process? Or would they not even think to check since these things are so rare?

I really don't know why. Just something I have read online. Changes can be made by mutual agreement when both parties are alive, of sound mind, etc. but when one party dies the will is irrevocable.

That would be bizarre. I don't see anything stopping the survivor writing an entirely new will, revoking all previous wills. Who's going to stop that?

In any case the survivor could remarry, automatically invalidating the will.

Scott.

I am no expert, having only recently acquired the Will, but here is a link that I think covers the situation "Mutual Will":

https://www.thelawsuperstore.co.uk/will ... rror-wills

Mutual wills cannot be altered after one partner passes away

[Dod101]

What is it that specifically prevents the surviving spouse from writing a new Will? If it was later submitted for probate, would the Probate Office stop the process? Or would they not even think to check since these things are so rare?

I really don't know why. Just something I have read online. Changes can be made by mutual agreement when both parties are alive, of sound mind, etc. but when one party dies the will is irrevocable.

That would be bizarre. I don't see anything stopping the survivor writing an entirely new will, revoking all previous wills. Who's going to stop that?

In any case the survivor could remarry, automatically invalidating the will.

Scott.

I am no expert, having only recently acquired the Will, but here is a link that I think covers the situation "Mutual Will":

https://www.thelawsuperstore.co.uk/will ... rror-wills

Mutual wills cannot be altered after one partner passes away

But I think CK said that mutual Wills tend to be US based and this looks like a US site? What you need to know is the English law on the matter.

Dod

[staffordian]

What is it that specifically prevents the surviving spouse from writing a new Will? If it was later submitted for probate, would the Probate Office stop the process? Or would they not even think to check since these things are so rare?

I really don't know why. Just something I have read online. Changes can be made by mutual agreement when both parties are alive, of sound mind, etc. but when one party dies the will is irrevocable.

That would be bizarre. I don't see anything stopping the survivor writing an entirely new will, revoking all previous wills. Who's going to stop that?

In any case the survivor could remarry, automatically invalidating the will.

Scott.

I am no expert, having only recently acquired the Will, but here is a link that I think covers the situation "Mutual Will":

https://www.thelawsuperstore.co.uk/will ... rror-wills

Mutual wills cannot be altered after one partner passes away

But I think CK said that mutual Wills tend to be US based and this looks like a US site? What you need to know is the English law on the matter.

Dod

I've not looked at the site but it is a .co.uk address.

As for the assertion that a joint will cannot be altered after one partner passes away, to me that makes perfect sense as both would need to sign any codicil or whatever. But surely this does not preclude the surviving partner tearing it up and making a new will?

[Lootman]

As for the assertion that a joint will cannot be altered after one partner passes away, to me that makes perfect sense as both would need to sign any codicil or whatever. But surely this does not preclude the surviving partner tearing it up and making a new will?

It make sense in that there was a contract between the two people. The deceased made that agreement based on the certainty that the same Will would apply upon the second death.

However there appear to be glaring problems with the idea. The first is that it takes no account of changed circumstances. For example what if the sole heir died and meanwhile the surviving spouse has another child? Is that new child doomed to be disinherited in favour of someone who may only be loosely connected with the family? There should at least be a provision to change the Will when circumstances materially change.

Secondly, if the surviving spouse makes a new Will, dies and then that new Will is presented for probate by her executor, who is going to catch the issue? Only the Probate Office I would imagine. But how would they ever know that the wife was ever part of a joint will?

A rule that motivates the survivor to gift assets to get around the restrictions of a joint will doesn't sound like good law to me.

[hiriskpaul]

As for the assertion that a joint will cannot be altered after one partner passes away, to me that makes perfect sense as both would need to sign any codicil or whatever. But surely this does not preclude the surviving partner tearing it up and making a new will?

It make sense in that there was a contract between the two people. The deceased made that agreement based on the certainty that the same Will would apply upon the second death.

However there appear to be glaring problems with the idea. The first is that it takes no account of changed circumstances. For example what if the sole heir died and meanwhile the surviving spouse has another child? Is that new child doomed to be disinherited in favour of someone who may only be loosely connected with the family? There should at least be a provision to change the Will when circumstances materially change.

Secondly, if the surviving spouse makes a new Will, dies and then that new Will is presented for probate by her executor, who is going to catch the issue? Only the Probate Office I would imagine. But how would they ever know that the wife was ever part of a joint will?

A rule that motivates the survivor to gift assets to get around the restrictions of a joint will doesn't sound like good law to me.

My wife's Aunt is 91, so another child is unlikely

Her uncle was very astute, trading shares until a few days before he went into hospital and completely sane. His record keeping was exemplary, an executors dream. The only issue is this joint Will. I am sure he had good reasons to do this, but I can only guess at them. Simplicity? To prevent his wife from being taken advantage of if he died first?

[Lootman]

As for the assertion that a joint will cannot be altered after one partner passes away, to me that makes perfect sense as both would need to sign any codicil or whatever. But surely this does not preclude the surviving partner tearing it up and making a new will?

It make sense in that there was a contract between the two people. The deceased made that agreement based on the certainty that the same Will would apply upon the second death.

However there appear to be glaring problems with the idea. The first is that it takes no account of changed circumstances. For example what if the sole heir died and meanwhile the surviving spouse has another child? Is that new child doomed to be disinherited in favour of someone who may only be loosely connected with the family? There should at least be a provision to change the Will when circumstances materially change.

Secondly, if the surviving spouse makes a new Will, dies and then that new Will is presented for probate by her executor, who is going to catch the issue? Only the Probate Office I would imagine. But how would they ever know that the wife was ever part of a joint will?

A rule that motivates the survivor to gift assets to get around the restrictions of a joint will doesn't sound like good law to me.

My wife's Aunt is 91, so another child is unlikely

Her uncle was very astute, trading shares until a few days before he went into hospital and completely sane. His record keeping was exemplary, an executors dream. The only issue is this joint Will. I am sure he had good reasons to do this, but I can only guess at them. Simplicity? To prevent his wife from being taken advantage of if he died first?

Perhaps the uncle's motive was benign as you suggest. But writing a joint Will can appear like an attempt by one party (presumably the one who thinks they are more likely to go first) to tie the hands of the surviving spouse. So for example if the surviving spouse meets someone new (less likely at age 91 perhaps, but you never know) then the cited constraint would prevent that new partner from benefiting from the second death. So it could look like an attempt to control things from beyond the grave

I am reminded a bit of the laws in some countries (e.g. France and Scotland, I believe) that forbid you from completely disinheriting your children. But you can still do that of course, simply by giving everything away whilst you are alive or placing your assets into joint ownership with your preferred beneficiary.

And then what if, as someone suggested, the surviving spouse remarries? Does that invalidate a joint Will in the same way as it does with an individual Will? Or does it have no effect because a joint Will enjoys some special exalted status?

More questions than answers, sorry.

[staffordian]

As for the assertion that a joint will cannot be altered after one partner passes away, to me that makes perfect sense as both would need to sign any codicil or whatever. But surely this does not preclude the surviving partner tearing it up and making a new will?

It make sense in that there was a contract between the two people. The deceased made that agreement based on the certainty that the same Will would apply upon the second death.

However there appear to be glaring problems with the idea. The first is that it takes no account of changed circumstances. For example what if the sole heir died and meanwhile the surviving spouse has another child? Is that new child doomed to be disinherited in favour of someone who may only be loosely connected with the family? There should at least be a provision to change the Will when circumstances materially change.

Secondly, if the surviving spouse makes a new Will, dies and then that new Will is presented for probate by her executor, who is going to catch the issue? Only the Probate Office I would imagine. But how would they ever know that the wife was ever part of a joint will?

A rule that motivates the survivor to gift assets to get around the restrictions of a joint will doesn't sound like good law to me.

I am surprised that the concept of a joint will exists, but my point was that it is surely not as prescriptive as has been suggested.

I suggest that the only complication is that a joint will cannot be altered purely on the technicality that a deceased person cannot sign or initial the changes . I seriously doubt it cannot be replaced.

And when someone wishes to change a will, I imagine most solicitors would advise making a new one rather than changing an existing one, so if the surviving party of a joint will wants to change it, I'd say it's simply a case of making a new one, which will supercede the one which cannot be amended. Just the same process as for anyone wishing to update their will.

P.S. Where is CK when you need him

[hiriskpaul]

As for the assertion that a joint will cannot be altered after one partner passes away, to me that makes perfect sense as both would need to sign any codicil or whatever. But surely this does not preclude the surviving partner tearing it up and making a new will?

It make sense in that there was a contract between the two people. The deceased made that agreement based on the certainty that the same Will would apply upon the second death.

However there appear to be glaring problems with the idea. The first is that it takes no account of changed circumstances. For example what if the sole heir died and meanwhile the surviving spouse has another child? Is that new child doomed to be disinherited in favour of someone who may only be loosely connected with the family? There should at least be a provision to change the Will when circumstances materially change.

Secondly, if the surviving spouse makes a new Will, dies and then that new Will is presented for probate by her executor, who is going to catch the issue? Only the Probate Office I would imagine. But how would they ever know that the wife was ever part of a joint will?

A rule that motivates the survivor to gift assets to get around the restrictions of a joint will doesn't sound like good law to me.

I am surprised that the concept of a joint will exists, but my point was that it is surely not as prescriptive as has been suggested.

I suggest that the only complication is that a joint will cannot be altered purely on the technicality that a deceased person cannot sign or initial the changes . I seriously doubt it cannot be replaced.

And when someone wishes to change a will, I imagine most solicitors would advise making a new one rather than changing an existing one, so if the surviving party of a joint will wants to change it, I'd say it's simply a case of making a new one, which will supercede the one which cannot be amended. Just the same process as for anyone wishing to update their will.

P.S. Where is CK when you need him

HMRC manual says a mutual Will cannot be revoked after one party dies:

https://www.gov.uk/hmrc-internal-manual ... /ihtm12063

[Clitheroekid]

Unfortunately from the reading I have done on joint Wills there is nothing we can do about it now as the Will cannot now be revoked by the surviving spouse.

Which shows the dangers of relying on internet advice!

I suspect you're confusing joint Wills and mutual Wills. As I said at the outset, joint Wills are really two individual Wills contained in one document. I believe that decades ago (maybe before the invention of word processors) they were used merely because they were a bit cheaper than making two separate Wills.

However, because they are legally two separate Wills the surviving testator can make a new Will.

A mutual Will is effectively a contract between two people to make Wills in each other's favour and not to alter them after the death of one of them. These are also extremely unusual, and very rarely recommended.

Just to complicate matters, it would be possible for a joint Will to be construed as a mutual Will, but there would have to be specific evidence that the testators intended that to be the case.

[Lootman]

HMRC manual says a mutual Will cannot be revoked after one party dies:

https://www.gov.uk/hmrc-internal-manual ... /ihtm12063

That link appears to suggest that an implicit Trust is created and is effective upon the first death that binds the survivor. And if the survivor breaks with that then they are liable to be sued by whomever is thereby disadvantaged. Or rather, since they are dead by this point, that her executor would be liable for distributing her estate in contradiction to what the mutual Will specified.

So it sounds like any enforcement of this relies on the Will beneficiary being aware of the situation and being willing to sue the executor of the survivor's estate for restitution.

[hiriskpaul]

Curiously, this HMRC page https://www.gov.uk/hmrc-internal-manual ... /ihtm12061, states

Whatever the type of Will, property held jointly (IHTM15001) and passing by survivorship (IHTM15081) cannot be subject to any Will but passes automatically to the surviving owner(s).

So presumably their jointly held property and bank accounts are not restricted by the Will. If so, can a Will be written to cover these assets? Or another joint tenants relationship entered into for these assets?