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23rd August 2017

Rare case of mutual wills made out

The High Court has recently found in favour of claimant daughters who were seeking to uphold an earlier will of their mother, whose later will dated 12th December 2014 was admitted to probate (Legg v Burton [2017] EWHC 2088 (Ch)).The daughters sought to establish that the earlier will, made in July 2000, was a mutual will made in conjunction with and at the same time as their father’s will.

A mutual will is a will made by two or more individuals who enter into an agreement that they will not revoke their will without the consent of the others. If the first individual dies without having altered the mutual will, the surviving testator is not at liberty to alter their will. When the surviving testator dies, their personal representatives will hold their estate on a constructive trust on the terms of the mutual will. Mutual wills are often confused with  mirror wills, where testators make wills in the same terms, but are free to alter their will at any time.

Ann Legg and Lynn Burton were the daughters of June and Bernard Clark. Bernard Clark died on 16th May 2001 and his entire estate passed to his wife, in accordance with his will of 25th July 2000. June Clark had entered into a will on the same date containing identical terms to Bernard’s, which were that their estate would pass to the surviving spouse absolutely, unless the spouse pre-deceased, in which case the estate would pass to the two daughters in equal shares. The mutual wills were unchanged at the date of Bernard’s death, however June went on to make several other wills, the last of which was the 12th December 2014 will. That will left only legacies of £10,000 to Ann and £30,000 to Lynn, with the remainder of the estate left to various beneficiaries including grandchildren and their spouses, three of whom were defendants to the claim.

The daughters were successful in establishing that there was an express agreement between their parents that the 25th July 2000 wills were intended to be mutual wills which could not be revoked or changed. The main asset was a council house, which Bernard and June had purchased under the right-to-buy scheme and which they wished to pass on to their daughters. The judge placed reliance on the evidence of the claimants that they attended the execution of the wills at their parents’ house where the agreement between their parents was explained to them.

Whilst the relationship between June and her daughters deteriorated over time, the Court found that June was not at liberty to unilaterally alter her will to be inconsistent with the 25th July 2000 wills, due to the binding nature of the agreement between her and Bernard, which fell into the equitable doctrine of mutual wills. The mutual wills were irrevocable and their daughters were to benefit from the gift of the house. As a result of the mutual wills of July 2000, despite the numerous other wills made by June prior to her own death, a constructive trust arose on her death that imposed an obligation on her personal representatives to give effect to the July 2000 will. Ann and Lynn therefore inherited the entirety of their mother’s estate in equal shares, and the numerous other beneficiaries named in the December 2014 will did not inherit anything.

The case highlights the importance of exercising caution when considering a mutual will and of careful consideration as to the benefit of achieving certainty that can extend beyond a spouse’s death, versus testamentary freedom that allows a testator to adapt their will in accordance with changing circumstances.

For more information please contact Lucinda Brown or Kate Harris in our Contentious Trusts & Probate team on 01223 532721 or click here to email Lucinda