To get a lawyer's "special pricing", do our wills need to be exact mirrors?

If you're thinking about getting your will done, you've probably looked around at prices offered by various lawyers and law firms. No doubt you've noticed that many lawyers will advertise a reduced price for a couple. A reader recently sent me some questions about that arrangement, as follows:

"I wonder if you could at some point address the question of whether (when?) it is advisable to have two separate lawyers when a couple wants to have their wills drafted. 

I'm very perplexed about this. Our wills will need to be coordinated somewhat, especially with regard to provisions for the case where we die simultaneously, but I expect them to differ from each other in various details. I see lawyers advertising special rates for couples, but does that mean the wills must be exact mirror images of each other to qualify? If they are not, then, if one uses the same lawyer, may that lawyer not find him/herself in a situation where he/she is obliged to inform one spouse of another's action, but doing so would mean breaking lawyer-client confidentiality?

Where one lawyer is used for both wills, is it usual for both spouses to be present for one consultation, or can they be seen individually?"

It's not usually necessary for couples to have separate lawyers to have their wills prepared, though of course they can choose that if they want to. The reason most couples use the same lawyer is that they are hoping to make plans that are consistent with each other. They feel that it's a goal they both have, with a benefit to both of them. They want to make sure that they make consistent plans for passing on assets to the kids, naming guardians for minors, and taking care of other matters ranging from businesses to pets to aging parents.

This doesn't mean that the wills must be exact mirrors of each other. I often find that couples want the same thing for major decisions, such as what age children may inherit, but have different plans for other matters. For example, a wife may wish to leave jewelry to her sister even if her husband is still alive, but the husband's will might simply leave all to his wife. There are often differences in their wishes for funeral or cremation.

One of the biggest differences occurs when one half of the couple has children from a prior relationship and the other doesn't. This can mean that the one with children wants to divide his estate between his new wife and the children from the previous marriage, whereas his wife, with no children, may wish to leave her entire estate to her husband.

When a lawyer advertises a special rate for couples (and I am one of them), the special rate is lower than the cost of two individual people coming in separately and having completely different documents prepared. The special rate anticipates that the couple will attend a meeting together and that their wills are going to be substantially similar. The lawyer is able to offer a discounted rate because instead of two meetings of an hour each, there is one meeting of an hour. It's also because if there is, say, a complicated trust to be drafted that will appear in two wills, it really only needs to be drafted once. Because there is a time savings, the lawyer can pass on the savings to the client.

I would therefore assume that if you want to take advantage of a special rate for couples, you will be expected to attend a meeting together. In our office, we do not necessarily expect the couples' wills to be identical to use our special rate, but we do expect them to be more or less mirrors of each other. I would think you'll find most lawyers will operate this way. There is no point offering a couple's rate if we're actually doing two completely separate files.

You are correct that if a lawyer sees both of you and prepares wills for you both, it is considered a joint retainer. Neither of you can ask the lawyer to keep any secrets from the other. In my view, a lawyer who is asked to change a will for one half of a couple under these circumstances should only go ahead with the changes once the lawyer is sure that the other half of the couple is aware of the changes being made. If it can't be divulged to the other half, the lawyer shouldn't be doing the changes and the client should get a different lawyer.

I do sometimes see only one half of a couple to do a will, though it is unusual. When I do encounter this situation, it generally involves a couple who are blending their families. Each of them already has a lawyer who has assisted them with a pre-nuptial agreement and each of them wants to stick with the lawyer with whom they have a trusted working relationship. 

These are the general rules. It's worth calling the office you're thinking of using to have a brief chat about their billing policies