For those of you who thought only Boris Karloff had that kind of reach, check out mutual wills.
This is a device of long lineage, first noted judicially in 1769 (the same year the last wild wolf was killed in the British Isles) in Dufour v Pereira a case tried by Lord Camden (yes, the man who founded Camden Town), who amongst the "haths" in his judgment, had this to say
"It is a contract between the parties, which cannot be rescinded, but by the consent of both. The first that dies, carries his part of the contract into execution. Will the Court afterwards permit the other to break the contract? Certainly not."
Sounds a bit scary, a bit like a suicide pact, but in reality it's not, it is just an arrangement where two people irrevocably agree to leave their estates reciprocally. But aren't all wills recovocable until death, I hear you say? Absolutely, and theoretically this is no exception to the rule, being in fact the application of a prior constructive trust.
Say A and B agree to make wills leaving all to each other, subject to a proviso that if the other dies first the estate passes to X. A dies and the estate passes to B, who contrary to the earlier agreement with A, then makes another will leaving all to Z. On B's death X can apply to have the gift to Z set aside, citing the agreement for mutual wills as the document that sets out the terms of the prior trust. Don't most husband's and wives write wills in that form? Well yes, all apart from the agreement that the wills are to be in irrevocable mutual form.
The recent case that underlined the continuing effectiveness of mutual wills involved the estates of two sisters Ethel Willson and Mabel Cook. Mrs Cook died in 1995 having made a mutual will by agreement with her sister Ethel, who died in 2006, having made a new will 2 months before she with provision materially different from the earlier mutual will; Ethel cut out the earlier bequests to relatives and friends in favour of the sisters' hairdresser, who duly received the £390,000 estate. The disappointed relatives and friends took their greivance to Court, and in a case involving allegations of undue influence and mental incapacity, the Court concluded that the sisters had made mutual wills the terms of which should be upheld, such that Mrs Fraser was required to hand back the cash.
For understandable reasons such cases rarely come to Court. In the opinion of the solicitor acting on behalf of the disappointed family and relatives such a proposition has been upheld only 3 times in the last 80 years. Such wills are rare, falling outside many a seasoned draftsman's experience. It's also quite likely that should the survivor of such an arrangement subsequently make a different will the fact that the provisions cut across an earlier mutual will may not be brought to anyone's attention. Errors of drafting or administration in this particular field can still have spectacular consequences, as this case amply illustrates. Get thee to a lawyer if you are at all concerned!
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.
