Mutual Wills Upheld by High Court

Sep 11, 2017
In the recent case of Legg and others v Burton and others, the court found that a married couple made what are known as legally binding ‘mutual Wills’, on the basis of evidence that they made a promise to each other not to revoke them. This decision meant that the Wills the surviving spouse went on to make years later had no effect, and it was the terms of the will made by both spouses in 2000 that would have to be observed by the executors.

Cases about mutual Wills are something of a rarity but this case seems to reinforce the view that the courts are perhaps more willing to find that even if the Will itself does not specifically state it is to be a mutual Will, if there is other evidence of an agreement having been reached that the Will would not be revoked by the survivor at a later date that agreement will be binding. The previous noteworthy cases where a mutual Will was found to have been made were Charles v Fraser and Fry v Densham-Smith, both in 2010.

So called ‘mirror Wills’ are made frequently by couples (usually husband and wife or civil partners) who have the same wishes as to how to distribute their estates when they die. In this case their Wills will be almost identical, appointing executors and leaving their assets to the same beneficiary or beneficiaries. For example, a husband and wife may execute mirror Wills in which they leave their respective estates to the survivor of the relationship and then to their children.

It is a fundamental principle of the law of England and Wales that each person has their own testamentary freedom to make and change their Will as they please. Therefore, the mere fact that a couple have made identical or mirror Wills does not prevent either of them from later changing their minds and revoking the earlier Will and replacing it with a new one setting out different alternative intentions.

The doctrine of mutual Wills is founded upon there being a binding agreement between the two individuals that they will not revoke their mirror Wills. So having identical mirror Wills is not enough on its own, there must also be an agreement never to depart from them in the future.

Occasionally, the mirror Wills themselves will contain a clause that states that they are intended to be contractually binding mutual Wills. However, this is rare.

In the recent case of Legg and others v Burton Legg and others, June Clark and her husband Bernard each made a Will in 2000, the one mirror of the other. Essentially each will gave the property of the maker to the surviving spouse, then to their two daughters in equal shares. Bernard died in 2001 and June left her will unchanged until in 2004 she began a course of making 13 new Wills progressively favouring grandchildren at the expense of the daughters.

The daughters made the claim in the High Court arguing that their mother and father expressly agreed that the Wills that they were making in 2000 could not be revoked and were ‘set in stone’, and one of the daughters was present when the identical Wills were signed. 

The Judge gave weight to what was said and done on the day that the Wills were executed and the daughter gave evidence that her father said he wanted everything set in stone and they did not wish for anything to be changed in future, at the time the Wills were executed.

Of particular note in this case is the Judge’s rejection of the previously held view of the courts that it is ‘inherently improbable’ that anyone would intend on making a mutual Will. 

This case may be seen as a further development of a more liberal approach to mutual Wills claims, and potential claimants will no doubt find encouragement in the judgment. However, it should be kept in mind that with mutual Wills claims each case is decided on its own facts and evidence. 

It would seem that cases involving mutual Wills are on the increase. In 2016 Nockolds succeeded in securing a valuable settlement for clients in their claim to enforce mutual Wills. In 2017 we have successfully concluded a case defending such a claim.

Should you have any questions or require any further information regarding mutual Wills, or Will disputes in general, please contact Daniel Winter, Partner in our Wills and Trusts Dispute Resolution Team, on 01279 755777.

Daniel is also a full member of the Association of Contention Trusts and Probate Specialists, the recognised body of lawyers specialising in this complex area of work.

Daniel Winter

About the author

Daniel Winter

Daniel joined Nockolds in 2009 and is a Partner in our Commercial and Property Litigation Team. Daniel has been practising as a qualified Solicitor for ...

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