Joint wills vs. mirror wills

One of the many questions I frequently receive from individuals calling my office is how much will it cost if I prepare a will for them and their spouse. After quoting my fee the next question I sometimes get is, “You mean my spouse and I have to make two separate wills?” Recently, I was also asked, “Why should we get charged twice when Mr. X said he’d make us joint wills for only $30?”

There is a misconception that spouses should be making only one will (commonly called joint wills) to dispose of their assets upon death. Many individuals have tried to convince me that they should only be making one will because they are married, all their assets are jointly held and they want everything to go to their children. While there is no existing law that prevents married couples from making joint wills, as a lawyer and an estates practitioner, I would strongly recommend to anyone who is thinking of making joint wills not to do so.

There are many difficulties that can arise when couples make joint wills. For example, what happens if one spouse suddenly decides they want to make a change to the will but the other spouse doesn’t? Or, one spouse owns an asset independent of the other spouse and wants to leave it to someone other than their children? The scenarios are endless.

When two individuals make a joint will it could be perceived as a contract between the two individuals. Consequently, what happens after the death of the first spouse? Can the remaining spouse then change the will? The law is unclear on this point and it may be up to a court of law to actually settle the matter. The process of probating a will twice is also complicated.

The bottom line to my objection over joint wills are the potential problems that can arise as a result of this document. Furthermore, in my opinion, just because a couple is married doesn’t mean that they give up their individuality. Each individual should have the right to choose who they want to benefit under their own will. Just because your spouse wants to leave everything to his mother doesn’t mean that you have to agree. Individuals should have their own Last Will and Testament that reflects their final wishes and not anyone else’s.

In my practice, I have never a drafted joint will and I never intend to draft a joint will for a client. I would not be giving my clients the best professional service possible if I did. Instead, what I often recommend to clients is that they could make “mirror wills.” Mirror wills are wills that are often identical or nearly identical and are usually made for spouses. This allows the clients to give identical bequests to the main beneficiaries while still providing them with the freedom and flexibility to make slight changes, should they so desire.

There is a great deal of time and effort that is needed to ensure that wills are properly drafted and that all the clients’ issues and obligations are addressed in the will. This means that, on average, a lawyer will spend several hours on any given will for the following reasons:

1. meet the client to receive instructions and discuss the client’s situation;

2. draft the will;

3. review the draft with the client; and

4. meet with the client to properly execute the will.

However, most lawyers in Winnipeg will charge a flat fee for simple wills instead of basing the fee on the time spent on the file. Actually, getting a will done in Winnipeg is a lot cheaper than getting one drafted in Toronto, Calgary or Vancouver.

As for the cheap joint wills that I have often heard about, I suspect that these wills are not being drafted by lawyers. I know of no lawyer who charges $30 for a will. My suspicion would be that these wills are being drafted by non-lawyers and the fee is actually for the Affidavit of Execution signed by a commissioner of oaths. After all, if a non-lawyer advertises that they provide legal services with respect to wills and estates, that is considered practicing law without a license and is therefore illegal.

So, a word of advice: having someone draft a will for you who is not a lawyer is just the same as buying a wills kit from the store. Be careful what you purchase – it may not be what you want or need.

The content of this article is not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the contents of this article, please seek the services of a legal professional.

Alona C. Mercado is a lawyer practicing in Winnipeg with the law firm of MONK GOODWIN LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate, and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Have a comment on this article? Send us your feedback