UK: A Rare Example Of Success: Mutual Wills - Daughters In Fight With Their Own Children

Last Updated: 15 September 2017
Article by Paul Hewitt and Richard Walker

A mutual will is one which cannot be changed and may even restrict a person's freedom to deal with his or her property (referred to in the Will) during their lifetime.

The law of mutual wills means if you and another make wills coupled with a legally binding promise not to change them, the survivor cannot then make changes following the death of the other (who kept his or her promise and now has no opportunity to make changes).

If established they create an interesting conundrum. The executors of the last Will find they are validly appointed but they have to administer the estate on the terms of the earlier 'mutual Will'.

That is merely one of the many difficulties presented by cases such as the very recent Legg v Burton where Ann Legg and her sister, Lynn Burton, found themselves in bitter dispute with Lynn's sons, Aaron and Michael.

Background

June and Bernard executed Wills in mirror terms in July 2000. They left their entire estates to each other 'absolutely and beneficially and without any sort of trust obligation' and on the death of the survivor to their two daughters, Ann and Lynn.

Ann's evidence was that she had been present at the time her parents executed their Wills. She said the solicitor had told her parents that 'the law cannot stop someone from changing their Will in the future' but that he was 'aware that [they] never wanted to change their terms again, and that their trust in one another not to make any future changes was enough'.

Ann and Lynn gave evidence that Lynn had arrived subsequently and their parents then explained the terms of the Will to her and explained 'their agreement that these Wills were to be further 'set in stone' and never changed again'.
At the time, Aaron and Michael were still minors. Bernard died in May 2001.

In 2004 June expressed a wish to add a granddaughter, Michelle, who had just become engaged, to her Will. Lynn, however, reminded her mother of her promise to Bernard not to change her Will and Lynn's evidence was that her mother said she would not do so after all. It became apparent that June had, in fact, already made the change but she made another Will five days later removing Michelle as a beneficiary.

The 2000 Will and the subsequent 2004 Wills were the first of more than a dozen wills made by June that, by and large, progressively favoured grandchildren at the daughters' expense.

June's relations with Ann and Lynn deteriorated from around 2010 coinciding with Ann's own daughter being diagnosed with cancer (from which she subsequently passed away in 2012).

As Ann and Lynn became less able to provide support to their mother, Lynn's sons, in particular, took on the role of carer.

The last Will, which June made in 2014, left £10,000 to Ann and £30,000 to Lynn, but the vast bulk of her estate to Aaron, Michael and other grandchildren.

The law

Those relying on the equitable doctrine of mutual Wills must prove, on the balance of probabilities, that there was a legally binding agreement between the two testators that both would make their Wills in a particular form (not necessarily mirroring the other) and that they would not revoke them.

The doctrine of mutual Wills does not theoretically take away the ability to make a new Will revoking the mutual Will. But it does impose a legally binding complication meaning the executors under any subsequent Will must administer the estate in accordance with the mutual Will. So the practical effect is that a mutual Will is only revocable in accordance with the agreement (if at all).

The standard of proof is the usual civil standard; that is on the balance of probabilities. But where something is inherently improbable, it takes more cogent evidence to persuade a court to find on the balance of probabilities that something indeed has been established.

The decision

The Judge complained that much of the evidence was irrelevant to the question of whether mutual Wills had been agreed. In particular, he was not interested in allegations by Lynn and Ann that Aaron and Michael were involved in criminal activity. These are matters for the criminal court.

The Judge found that there were too many features of the evidence pointing against a finding that the daughters' memories were unreliable. These included June's pride in having a home to pass to the next generation, the inclusion of her daughters in the will making process and, above all, the desire in 2000 to make the Will once and to do it right.

The fact that June had undone a change she made to her Will in 2004 when she was reminded of her agreement with Bernard was also compelling.

Thus he decided that the daughters had succeeded despite the inherent improbability of mutual wills.

The effect of the doctrine of mutual wills is that whatever was left in June's estate at her death is held by her executors on trusts reflecting her agreement with Bernard. Therefore, they must administer her estate in accordance with her mutual Will, not the latest Will which appoints them.

Judge tells senior Judges they are wrong

Interestingly, the Judge points out, respectfully, that a recent Court of Appeal decision about mutual wills is wrong.

The Court of Appeal decided that mutual wills arise on the basis of legally binding agreements. A legally binding agreement about real estate must be in writing. Therefore, where the mutual will contains a specific gift of land, the Court of Appeal held that the agreement not to revoke must also be written down.

The Judge, however, explains that promises upon which another reasonably relies to his or her detriment still bind a promise-maker in the same way as a contract, even in respect of land. So, he says, mutual wills can be founded either on formal contracts or informal promises (ie proprietary estoppel).

The Judge was being particularly brave as he didn't need to decide this particular point because June and Bernard had not included a specific gift of their house – it just formed part of the residuary estate gifted 'absolutely and beneficially'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Paul Hewitt
Richard Walker
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.