How binding is a joint will?

doubtfir3

Hi,

Just a question on something I was thinking about today..

For example, if a husband and wife make a joint will, and then one of them dies is it possible for the surviving person to make a new will?

E.g. I make a will with my wife, we jointly decide to leave asset X to one (or two) people, and then I die.. can she then decide to leave that asset to another person?

I don't have a specific reason for asking, but was musing about wills and inheritances earlier and it just came into my thinking.

Marcusm

Isn't this a case that the deceased spouse would leave a life interest to the surviving spouse and the remainder to the proposed legatee. This is one of those points at which you realise that a solicitor is important for such matters. I suspect that their advice would be that either spouse can revoke their element of the will even when the other spouse is living never mind when they have died.

doubtfir3

Thanks - its only a theoretical question but was interested in people's opinions on it.

To me, it would make sense that each person has an independent right to their "half" of the asset, and as such as you said it is their right to leave that portion to any one they wish.

G3467

From IrishWills.ie:

"Joint Wills A joint will is a single document made by two spouses or partners setting out how their property and assets are to be distributed following their deaths. In many cases, joint wills simply provide that when one of the spouses/partners dies, their assets will transfer to the other or two named beneficiaries under the will. In addition, joint wills also set out details as to what will happen to the assets held by the surviving spouse or partner when he or she dies.
This manner in which the will provides for the distribution of the surviving spouse/partner’s estate is extremely important because when the first spouse or partner dies, the joint will becomes irrevocable. In other words, it cannot be changed by the surviving spouse or partner in any way. This inability of the surviving spouse/partner to change the joint will after the death of the other spouse/partner therefore places enormous restrictions on the surviving spouse or partner. Even where the circumstances may warrant a change being made to the will, the survivor is powerless to do so. This can be all the more problematic where the spouses/partners die a number of years apart. It is for this reason that we do not ordinarily recommend the use of joint wills and suggest the use of two separate mirror wills in its place."

Cody Pomeray

Joint wills are fully binding in that they are irrevocable; the will operates like a sort of trust from the date of the death of one of the testators.

For this reason, and for the many complications you can imagine arising if there is a long gap between both testators' deaths, it is usually more attractive for both individuals to make individual wills which complement and resemble one another, but which remain open to change.

Marcusm

Cody Pomeray wrote: »

Joint wills are fully binding in that they are irrevocable; the will operates like a sort of trust from the date of the death of one of the testators.

For this reason, and for the many complications you can imagine arising if there is a long gap between both testators' deaths, it is usually more attractive for both individuals to make individual wills which complement and resemble one another, but which remain open to change.

I find that shocking; consider a pair of 35 year olds who make a joint will leaving their assets to their children including explicitly dealing with any residue; subsequently the husband dies, the wife remarries and has further children. Should her second husband die leaving everything to her, a strict reading of your note might imply that assets of the second husband form part of the residue to be given to children of the original marriage?

Might the original joint will be frustrated by the surviving spouse dealing with the assets (perhaps passing them away by gift) during her lifetime?

Surely a joint will could only work if the surviving spouse is given a limited interest in the asset rather than making a commitment to deal in them in a particular manner should they still exist on her/his death.

Pro Hoc Vice

Marcusm wrote: »

I find that shocking; consider a pair of 35 year olds who make a joint will leaving their assets to their children including explicitly dealing with any residue; subsequently the husband dies, the wife remarries and has further children. Should her second husband die leaving everything to her, a strict reading of your note might imply that assets of the second husband form part of the residue to be given to children of the original marriage?

Might the original joint will be frustrated by the surviving spouse dealing with the assets (perhaps passing them away by gift) during her lifetime?

Surely a joint will could only work if the surviving spouse is given a limited interest in the asset rather than making a commitment to deal in them in a particular manner should they still exist on her/his death.

My understanding (which may be flawed) is that joint wills would not normally be advised in your average married couple situation, due to the fact the surviving spouse can be severely restricted.

I do not think that any property coming to the surviving spouse after the death of the first spouse would be caught in the joint will, if such happened I would assume it was down to bad drafting.

Cody Pomeray

Marcusm wrote: »

I find that shocking; consider a pair of 35 year olds who make a joint will leaving their assets to their children including explicitly dealing with any residue; subsequently the husband dies, the wife remarries and has further children. Should her second husband die leaving everything to her, a strict reading of your note might imply that assets of the second husband form part of the residue to be given to children of the original marriage?

I would doubt that a joint will is binding on the future assets of the surviving testatrice in that case, but it would indeed make for a fascinating challenge.