The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, but not expressly mutual. They had each however talked of ‘the Will’ and certain provisions woild make sense only if they were mutual.
Held: Whilst the court must approach the evidence in such cases with caution, ‘there was an agreement between the sisters at the time they made their 1991 wills that each would leave her estate to the other and that the survivor would leave what remained of their conjoined estates to the beneficiaries and in the shares stipulated in clause 5 of the wills. They made mutual promises to each other and it was either an explicit or implicit part of those promises that the will of the survivor would not be altered so as to change those gifts. The way in which the shares of the beneficiaries were calculated and divided equally between the friends and relatives of the respective sisters indicates this (though it is not enough on its own). It is clear that each sister was conscious that the assets of the survivor would derive in part from the family of the first to die, in particular the estate of her deceased husband, and ought, in fairness, to be shared equally with that sister’s family.’
Gaunt J said: ‘I take the law on mutual wills to be as follows:
(i) Mutual wills are wills made by two or more persons, usually in substantially the same terms and conferring reciprocal benefits, following an agreement between them to make such wills and not revoke them without the consent of the other.
(ii) For the doctrine to apply there has to be what amounts to a contract between the two testators that both wills will be irrevocable and remain unaltered. A common intention, expectation or desire is not enough.
(iii) The mere execution of mirror or reciprocal wills does not imply any agreement either as to revocation or non-revocation.
(iv) For the doctrine to apply it is not necessary that the second testator should have obtained a personal financial benefit under the will of the first testator (albeit that in the present case Ethel had, of course, done so).
(v) It is perfectly possible for there to have been an agreement preventing revocability as to part of the residuary estate only, in which case the doctrine only applies to that part.
(vi) The agreement may be incorporated in the will or proved by extraneous evidence. It may be oral or in writing.
(vii) The agreement must be established by clear and satisfactory evidence on the balance of probabilities.
(viii) The agreement is enforced in equity by the imposition of a constructive trust on the property which is the subject matter of the agreement. The beneficiaries under the will that was not to be revoked may apply to the Court for an order that the estate is held on trust to give effect to the provisions of the old will.
(ix) The action relates only to the disposative part of the will. The new will is fully effective to deal with non-disposative matters, such as the appointment of Executors. Accordingly where the doctrine applies the Executors appointed under the final will hold the assets of the estate on trust to give effect to the earlier will.’
Jonathan Gaunt QC DHCJ
[2010] EWHC 2154 (Ch), [2010] WTLR 1489, 13 ITELR 455
Bailii
England and Wales
Citing:
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – In re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .
Cited by:
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 01 November 2021; Ref: scu.423812