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, creating a trust from which he should not resile, and an exceptional circumstance under the 1975 Act.
Held: A claim that mutual wills had been made requires clear evidence of a contract or agreement between the two testators. It is wrong to import into that doctrine lesser standards based upon secret trusts and similar: ‘Two wills may be in the same form as each other. Each testator may leave his or her estate to the other with a view to the survivor leaving both estates to their heir. But there is no presumption that a present plan will be immutable in future. A key feature of the concept of mutual wills is the irrevocability of the mutual intentions. Not only must they be binding when made, but the testators must have undertaken, and so must be bound, not to change their intentions after the death of the first testator.’
Lord Justice Leggat, Lord Justice Morritt, Lord Justice Phillips
Times 12-May-1997, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Appeal from – Goodchild v Goodchild ChD 13-Dec-1995
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) 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. Latham CJ described a mutual will arrangement as . .
Distinguished – 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 – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Cited – In re Gardner 1920
A common intention of husband and wife and taking of benefit are sufficient to establish mutual wills. . .
Cited – In re Hagger; Freeman v Arscott ChD 1930
The husband and wife had made wills in similar terms, each leaving their separate property to each other on the first spouse dying with remainders over. They agreed that the wills should not be revoked without the agreement of the other. The wife . .
Cited – Ottaway v Norman ChD 1971
Proof required for mutual wills claim
The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her . .
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 – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Gray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
Cited – Bosch v Perpetual Trustee Co 22-Feb-1938
(New South Wales) If a Court finds that the testator has been guilty in all the circumstances of a breach of moral obligation owed by a father towards his child, by leaving the child in straitened financial circumstances, the Court must ensure that . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Re Sainsbury’s Settlement 1967
If an order is made properly and within the jurisdiction of the court, the fact that it was sought with the motive of seeking to achieve a better tax position is usually irrelevant. . .
Cited – In re Coventry dec’d ChD 2-Jan-1979
The court set out the general approach to applications under the 1975 Act: ‘these matters have to be considered at two stages – first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant’s . .
Cited by:
Appealed to – Goodchild v Goodchild ChD 13-Dec-1995
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Charles and Others v Fraser ChD 11-Aug-2010
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, . .
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, Trusts
Leading Case
Updated: 02 November 2021; Ref: scu.142007