Protect assets and the family

Drafting a “mirror” will by spouses or unmarried couples who have similar wishes can be a wise way to protect joint assets and the interests of children.

Mirror wills are two virtually identical wills in which one party leaves their estate to the other in the event of their death and if both die simultaneously, to the surviving children.

As with a joint will – a single document executed by both spouses – each spouse or partner may also name their own executors in mirror wills. This is an important decision as an executor is the person appointed to ensure the instructions of the testator or testatrix are carried out.

As it’s normal for both parties to appoint each other as executors, it’s important that additional executors are appointed should both partners die simultaneously.

Another advantage is that each party gets their own original will for safekeeping, which can lead to more efficiency when their estates need to be reported and wound up.

In South Africa there’s an estate duty and capital gains tax exemption for inter-spousal bequests, so drafting a mirror or a joint will makes practical sense if the intention is to use the available exemptions.

Another important provision could be to set up a testamentary trust. Trustees are appointed to protect 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.

However, both parties who have mirror wills need to understand that the other person still has a right to change their will in future.

In fact, they need not even tell the other spouse or partner they’ve done so.

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

Amendments or revocation of mirror wills must ideally happen at the time when circumstances change.

Kobus van Schalkwyk is head of corporate development for Standard Trust Limited at Standard Bank