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 claim was established. ‘in my judgment this evidence would establish two agreements between Mr and Mrs Clark. The first iss an agreement at some time before the execution of the will, and the second is one just afterwards. Each was to the effect that the wills they were to make, or had just made, were irrevocable. Their daughters were to benefit from the gift of the house.’
Paul Matthews HHJ said: ‘In order to succeed in a claim that a will falls within the equitable doctrine of mutual wills, and is accordingly binding on the estate of the testator despite a subsequent change in that will, the claimant must prove, on the balance of probabilities, that the testator made a legally binding agreement with the other testator that both would make their wills in a particular form (not necessarily the same) and that they would not revoke them or (depending on the terms of the agreement) change them without notice to the other or others sufficient to enable that other or others to change their own wills as well, that they made their wills in that particular form and that they did not revoke them (or change them without such notice), and the first of the testators to die did so, not having revoked (or changed) his or her own will.’
Paul Matthews HHJ
 EWHC 2088 (Ch)
England and Wales
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 – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
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 – Lewis v Cotton 18-Dec-2000
(Court of Appeal of New Zealand) The Court considered the equitable doctrine of mutual wills. The doctrine recognised that the executors and trustees of a will may be required to hold affected assets upon a constructive trust in terms of a revoked . .
Cited – Lord Walpole v Lord Orford 1789
The court was asked, where there were two inconsistent wills, to which of them a later codicil must be held to refer.
The equitable maxim, voluntas testatoris ambulatotia est usque ad mortem, operates so that an instrument which appears to be . .
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 – 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 – 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 . .
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 – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Fea v Roberts 2006
Expenditure on matters such as home improvements ‘could not be regarded as a dissipation or true ‘change of position”. . .
Cited – Gestmin SGPS Sa v Credit Suisse (UK) Ltd and Another ComC 15-Nov-2013
The claimant sought damages alleging negligence by the defendants in advice given on an investment in an initial public offering of shares.
Leggatt J considered the reliability of the memories of witnesses: ‘An obvious difficulty which affects . .
Cited – Blue v Ashley (Judgment) ComC 26-Jul-2017
The parties disputed the existence of an oral agreement by a businessman to pay a sum of millions of pounds in certain circumstances to a business acquaintance with whom he was then drinking in a public house.
Held: The claim failed: ‘no . .
Cited – Olins v Walters ChD 19-Dec-2007
A claim was made for the proof of a will and of a codicil as a mutual will.
Norris J said of one witness: ‘I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Cited – Re Oldham; Hadwen v Myles 1925
The court was asked whether an agreement for mutual wills should be inferred. The court said that it is inherently improbable that a testator should be prepared to give up the possibility of changing his or her will in the future, whatever the . .
Cited – Paul v Constance CA 8-Jul-1976
Cited – Fry v Densham-Smith CA 10-Dec-2010
The parties disputed whether wills made were mutual.
Held: The Court upheld the finding of the judge at first instance that there was an oral agreement between two testators (Denny and Laura, each with a son from a previous marriage, Martin . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 31 October 2021; Ref: scu.593128