A recent case, McLean v McLean  EWHC 1863, dealt with what amounts to an agreement for mutual Wills.
In this case, the husband and wife executed mirror Wills in 2017. Both of their Wills left their respective estates to each other if surviving at the time of the other’s death, with the residue estate divided equally between the four children. The husband died and under the 2017 Will, the wife took his estate. The wife then changed her Will in 2019, leaving her entire estate to her son – the other three children were her stepchildren.
The other three children brought a claim that the 2017 Wills were intended to be mutual Wills, which meant the wife’s estate was held on trust for all four children under the doctrine of mutual Wills.
Doctrine of Mutual Wills
In Re Dale, decd  Ch 31 it was stated that the doctrine of mutual Wills is:
"…to the effect that where two individuals have agreed as to the disposal of their property and have executed mutual wills in pursuance of the agreement, on the death of the first ("the first testator"), the property of the survivor ("the second testator"), the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills. The survivor may thereafter alter his will, because a will is inherently revocable, but if he does his personal representatives will take the property subject to the trust."
A mutual Will can therefore be revoked but the property will still be held under a trust in accordance with the mutual Wills.
Requirement of an Agreement
In re Goodchild, decd  1 WLR 1216, Leggatt LJ stated there must be a contract, or clear evidence of mutual intention, that the Wills should not be altered. He said:
"I am satisfied that for the doctrine to apply there must be a contract at law…
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. The test must always be, suppose that during the lifetime of the surviving testator the intended beneficiary did something which the survivor regarded as unpardonable, would he or she be free not to leave the combined estate to him? The answer must be that the survivor is so entitled unless the testators agreed otherwise when they executed their wills. Hence the need for a clear agreement…
What is required is a mutual intention that both wills should remain unaltered and that the survivor should be bound”
Evidence of any agreement to create mutual Wills and bind the other must be "certain and unequivocal" (Re Oldham  Ch 75 at p87) or "clear and satisfactory" (Re Cleaver at 948A).
There must be a clear agreement that the Wills are to be irrevocable and unaltered.
In this case, the Court looked at evidence from the husband and wife’s 2017 Will files held by their solicitor, to determine what was discussed at the time. It was found that at the 2017 meeting, the solicitor had told the husband that there was no guarantee that his wife would not change her Will. The husband expressed his trust in his wife that she would not do that. The wife expressed that she would not change her Will to disinherit the stepchildren and that she too trusted her husband. The issue of mutual Wills was not discussed and neither the husband nor wife contemplated a situation where the Wills would be changed.
No agreement to not revoke the Wills was found. It was held that even if the wife made a legally binding promise not to revoke her Will, it was not reciprocated by the husband. The common intention of the husband and wife in 2017 to provide for all four children does not create a promise not to revoke those Wills.
There was no evidence that the husband made his 2017 Will on assurance from the wife either.
The three children appealed the Court’s decision, stating the husband’s expression of trust in the wife arose in the context of the wife not revoking her Will – she expressly stated that she would not do that.
The appeal was dismissed and it was held that to establish mutual Wills there needs to be a clear agreement, an expectation or trust is not enough. The evidence in this case was based solely on the husband's trust in the wife.
The issue of estoppel was also dealt with – whether the Wills become mutual Wills through estoppel principles. It was held that for estoppel to work, it must be established that there was a representation from the wife which intended to bind them and it was received by the husband as such. It was found there was no such representation so the point of whether estoppel could be used was not dealt with in full. However, it was said that an estoppel argument could be plausible in future cases, as estoppel operates in equity as does the doctrine of mutual Wills.
In Legg v Burton  EWHC 2088 (Ch), the judge considered that the availability of an estoppel might be a way out of difficulties arguably posed by a situation in which the subject matter of mutual Wills was real property. This is because the agreement for mutual Wills was oral but section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 requires a contract to be in writing.
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