Mutual Wills and Mirror Wills

Mutual Wills and Mirror Wills

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider the use of mirror Wills and Mutual Wills and how they affect a Will Dispute and Will Contest claim

What is a mirror Will and what is a Mutual Will?

A mirror Will is a Will that basically copies or reflects the terms of another Will. Invariably they are prepared by (usually) married couples to ensure their testamentary wishes
are the same. It is very often assumed that they cannot be changed. Our previous blog on this issue explored this in some detail:

They can be changed and in fact, are not binding at all (on the survivor). A subsequent change to the terms of a mirror Will cannot be relied on then to find a Will contest or Will dispute claim although it might serve to reinforce extraneous evidence that a promise had been made by one of two testators who had prepared mirror Wills, to maintain the mirrored terms until his/her own death (not to change the terms of his/her mirror Will).

In contrast, Mutual Wills which like mirror Wills copy or reflect the terms of another Will, whilst they can be changed, remain enforceable notwithstanding. This means that the beneficiary of a so-called Mutual Will which is subsequently changed can enforce the terms of the earlier Mutual Will which had been in his/her favour.

So what has to be done to create a Mutual Will?

There is some very useful analysis by HHJ Matthews in Legg and another v Burton and others [2017] EWHC 2088 (Ch):

The law

  1. A number of authorities were cited to me. These include Re Cleaver deceased [1981] 1 WLR 939, Re Dale deceased [1994] Ch 31, Re Goodchild deceased [1997] 1 WLR 1216, CA, Lewis v Cotton [2001] 2 NZLR 21, CA of NZ, Olins v Walters [2009] Ch 212, CA, Charles v Fraser [2010] EWHC 2154 (Ch), and Fry v Densham-Smith [2010] EWCA Civ 1410. From these authorities I deduce the following propositions. In order to succeed in a claim that a will falls within the equitable doctrine of mutual wills, and is accordingly binding on the estate of the testator despite a subsequent change in that will, the claimant must prove, on the balance of probabilities, that the testator made a legally binding agreement with the other testator that both would make their wills in a particular form (not necessarily the same) and that they would not revoke them or (depending on the terms of the agreement) change them without notice to the other or others sufficient to enable that other or others to change their own wills as well, that they made their wills in that particular form and that they did not revoke them (or change them without such notice), and the first of the testators to die did so, not having revoked (or changed) his or her own will.

For a Will to fall within the concept of “Mutual Wills”, the Claimant must prove there was a legally binding agreement between those making the Wills. Our only brush in this concept (which resulted in an easy win!) involved the actual Will reciting the promise not to revoke and a separate document in the form of a “Deed” (which creates a binding agreement between parties to it without the need for “consideration”) saying the same thing.

What happens if one can “prove” the agreement but there is insufficient to show it was “binding”

We have alluded to this circumstance above. It is more likely than not that there will be insufficient to prove the “binding” nature of the agreement. We gave an example above of a Mutual Wills case which we successfully dealt with because the “agreement” which was recited in the Will had been made “binding” because it was repeated in a separate agreement (to the Will) in the form of a Deed. A “Deed” can create a binding agreement without the need for “consideration”. More often than not there will be no consideration and no deed at all.

However, this doesn’t mean the Court might not decide to enable enforcement by another means. If a promise is found to have been made, it may be possible to enforce by means of a financial provision claim under the Inheritance (Provision for Family and Dependants) Act 1975. This was the outcome in Goodchild and another v Goodchild [1997] EWCA Civ 1611:

Whilst the Court was unable to find evidence of a binding agreement, it found sufficient evidence of a promise to persuade it to make an award (under the Inheritance (Provision for Family and Dependants) Act 1975) because of the “moral obligation” the promise created (as per Leggatt LJ): With these submissions, I disagree fundamentally. The principles by reference to which the Court proceeds are clear. When the Court finds that the testator has been guilty in all the circumstances of a breach of moral obligation owed by a father towards his child, leaving the child in straitened financial circumstances, the Court must ensure that adequate provision is made for the child out of the estate, having regard to his need for maintenance and support: Bosch v Perpetual Trustee Co [l938] A.C. 463. There was here the plainest possible basis for concluding that, whereas Dennis and Joan had not made a clear agreement for mutual wills, nonetheless, Joan’s understanding of the effect of the will she had made was such as to impose upon Dennis, free though he was of any legal obligation, a moral obligation, once Gary’s need for reasonable financial provision was established, to devote to his son so much of his mother’s estate as would have come to him if there had been mutual wills.

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