ARE JOINT WILLS FOR COUPLES A GOOD IDEA?

No, it is not.

The thing is that a joint Will is like an irrevocable contract—once the first spouse passes away, the second spouse cannot change the joint Will even if circumstances change.
The inability to change a joint Will after the first spouse dies could have assets and property tied up for years, so the surviving spouse cannot downsize the marital home, or sell it to pay for assisted living or expenses.

Failure to have separate Wills prevents the surviving spouse from changing beneficiaries, so if that spouse remarries, their new spouse and stepchildren cannot inherit assets listed in the joint Will.

Because a joint Will for married couples is irrevocable, after the first spouse dies, the surviving spouse cannot put money in a trust for an adult child who spends money recklessly. The surviving spouse cannot, as in the following example, change the percentage of the Estate going to the children or put money in a trust for the child with special needs.

Suppose you and your spouse have two healthy, robust sons. They love playing sports and are academically sound. You have a joint Will leaving everything to each other when the first dies and then the entire Estate to your two children in equal portions when the second dies.

Your husband dies and one of your sons become a quadriplegic after a tragic rugby game incident. He now needs specialised and constant care. Your other son has a secure and senior position at a big corporate.

You die and the Estate is split equally between your now adult two sons. Each share is equal, but their needs are very unequal. You have been unable to change the Will after the death of your husband because you have been bound by the joint Will.

This calamity could have been avoided if you and your husband had prepared separate Wills. If you had separate Wills, you could have changed your Will to make better provision for your quadriplegic son.

The joint Will does not allow the surviving spouse to change beneficiaries or executors, add new beneficiaries who were born after you made the Will, or allow beneficiaries to get their inheritance sooner.

Mirror Wills

A popular and effective option to joint Wills for many married couples or life partners is mirror Wills. These are almost identical Wills where both partners leave their Estate to the other. You also name the same people and organisations as your secondary beneficiaries. If both die simultaneously, the Estate go to the surviving children. A mirror Will could work well for married couples and couples in a domestic partnership.

As with a joint Will – which is a single document executed by both spouses – each spouse or partner may also name their own Executors in mirror Wills. This is a very important decision as an Executor is the person appointed to ensure the instructions of the Testator or Testatrix are carried out.
In South Africa there is an Estate Duty and Capital Gains Tax exemption for inter-spousal bequests and so drafting a mirror Will makes practical sense if the intention is to make use of the available exemptions.

Another important provision could be to set up a Testamentary Trust so that Trustees are appointed to protect their inheritances until children are old enough to manage their own affairs.

Provision can also be made to appoint Guardians for minor children in the event of both spouses dying.

An important caveat is that both parties who have mirror Wills need to understand that the other person still has a right to change their Will in future.

Freedom of Testation is not affected by the fact you have drafted a mirror Will and one party can revoke their Will and draft another Will whenever they want. In fact, they need not even tell the other spouse or partner they have done so. If one of the parties therefore has a sudden change of heart, or if the relationship breaks down, he or she can update his or her own Will individually.

With divorce rates on the rise, spouses need to plan their affairs carefully in advance, but when circumstances change due to divorce, they must ensure they update their Wills immediately to reflect any changed goals and desires.

Amendments or revocation of mirror Wills must ideally happen at the same time when circumstances change so they continue to match overall Estate and financial planning goals. It is always advisable to review Wills regularly to ensure they meet specific goals.

If it matches the desires and needs of both parties and is drafted by trusted experts, a mirror Will can be a wise way to ensure joint wishes are met.

Capital Legacy has already drawn up over 400 000 Wills in its 10 years of existence and Estates administered and/or under administration is 4000. With all this experience Capital Legacy is the leader in its field and can help you draft your Will, at no cost to you.