In our previous blog, we discussed the differences between mirror Wills and mutual Wills. Since a testator is not required to make it clear within his/her Will that it is intended to be a mutual Will, a Will can be construed as a mutual Will if there is evidence that the testators agreed that both Wills would be irrevocable and mutually binding on each other. This is where a dispute may arise, and the intention and conduct of the testators must be considered.
Background
In this case, two sisters who had a close relationship and lived together for some years executed two ‘mirror Wills’ in 1991, appointing each other as the sole executrix and detailing the arrangement of how their combined estates were to be divided equally amongst 15 beneficiaries from both sides of their families and friends. Neither of the Wills contained any record that the Wills had been made in accordance with an agreement between them, but it was apparent from the provisions of the Wills that the terms had been carefully discussed and agreed.
One of the sisters died first in 1993 without revoking her Will, and the other sister inherited under the Will. The surviving sister later executed two other Wills in 2003 and 2006, differing from her original one before her death, varying the distribution of the estate on the second death. The Claimants, as the beneficiaries of the original Will, contended that the original Will was a mutual Will and therefore could not be changed. The Defendant disputed the existence of an agreement between the two sisters and contended that the surviving sister had the freedom to revoke/alter her Will.
Decision
The Court decided that the ‘mirror Wills’ were mutual Wills:
- Mere common intention/expectation/desire was insufficient for mutual Wills. A clear contractual agreement between the two testators that both Wills would be irrevocable and remain unvaried was required;
- There was an absence of a written record of the agreement between the two sisters, but this could be due to oversight/loss of documentation rather than the actual absence of agreement;
- The two sisters had made mutual promises to each other, and it was either an explicit/implicit part of those promises that the Will of the survivor would not be altered;
- The surviving sister’s first varied Will in 2003 was an attempt to tidy up rather than to break the agreement, given that the shares of the predeceased sister’s beneficiaries were unchanged; and
- The surviving sister’s second Will in 2006 was disregarded due to her lack of capacity.
Comment
Whilst the Court was able to find an agreement between the testators, it is generally very difficult to prove a common intention agreement between the testators if it is not clearly written down and signed by them because they have both died and are not able to give evidence.
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