When Is A Mutual Will Created & How Is This Interpreted By The Court?

Wills are often prepared jointly by spouses who have the same intention as to the disposal of their estate on death. Common terms will be for their estate to pass to the surviving spouse and on the second death, the estate shall pass to their children.

There is always a risk that on the death of the first testator, the spouse may later change the terms of their Will and given that they have inherited their spouse’s estate, may dispose of that estate against the deceased’s wishes. This is always possible when two people make “mirror Wills” which have identical terms but can be changed later, but not the case if the parties create “mutual Wills” which are intended to be binding after the death of the first party.

Mutual Wills

Mutual Wills are not always attractive to couples because they cannot be changed in the event that circumstances change later (e.g. early death of a spouse and the survivor entering a new relationship). However, when both parties want to proceed in this fashion, it is important that mutual Wills are properly prepared to prevent either party from later reneging on the agreement.

In order to create binding mutual Wills there must be a binding agreement between the testators. The agreement must be certain that each testator accepts the Will of the other party shall be binding and cannot be amended without the consent of the other. This agreement will extend beyond death and each testator must agree the agreed terms cannot be prevented on the death of the first.

Such an agreement may be the equivalent of a contract as it must create a legal obligation as opposed to a mere moral obligation. An honourable agreement on its own will not be sufficient and will allow the surviving spouse to renege on the mutual Wills.

McLean and others v McLean

Case background

The consideration of what may be a valid mutual Will was recently considered in the case of McLean and Others v McLean. This decision concerned spouses, Mr and Mrs McLean, who created mirror Wills however on the death of Mr McLean, Mrs McLean created a new Will significantly altering the disposal of their estate.

The original Wills left their respective estate to each other and on the death of the second their four children. Mr McLean died first and 5 months later Mrs McLean created a new Will leaving her estate to one child only, excluding the others who were step-children to Mrs McLean only. This was contested by the step-children who sought to rely on the previous Will being a binding mutual Will.

In order to consider whether the parties had indeed made binding mutual Wills the Court had to consider what happened when they were created and whether or not the parties knowingly entered into a binding agreement. The Court noted Mr and Mrs McLean were warned either of them could change their Will after the death of the other and they confirmed they implicitly trusted each other after 45 years of marriage, that the specific issue of mutual Wills was not discussed and there was no specific agreement that neither of them would revoke that Will at a later date. Although Mrs McLean suggested she would not, in order to be binding that promise must have been reciprocal. The requirement for a “reciprocal promise” proved fundamental.

The Court further considered whether a proprietary estoppel claim could be applied in order to prevent the mother, under the terms of her new Will, from disinheriting the step-children. This was dismissed promptly on the same grounds that no agreement could be established and further, no party would be able to show a detriment on the reliance of that agreement. Accordingly, the Court concluded the amended Will would stand, effectively dis-inheriting the stepchildren.

Comment

This case confirms the strict application when considering Mutual Wills and the difficulties in seeking to prevent the surviving testator from reneging on an agreement. An alternative may be for testators to create a life interest trust in favour of their spouse however this does not attract the same Inheritance Tax reliefs which a Mutual Will can so generously provide.