Does Having a Mirror Will Create a Binding Obligation
DISPUTING A WILL – IF A COUPLE HAVE MIRROR WILLS DOESN’T THAT MEAN THEY CANNOT BE CHANGED?
Firstly, what is a mirror Will? Put simply it arises when a couple, usually a married couple, have prepared Wills (usually at the same time) where each separate Will is a reflection of the other. A typical example might be a Will prepared by the wife, leaving the entirety of her estate to her husband but if he died before her, then to their children; with the husband’s Will leaving the entirety of his estate to his wife, but if she died before, then to their children. It is often suggested that this means the Will cannot be changed.
Unfortunately, this is not correct. Their Wills can be revoked at any time and importantly, this can and does (it seems) sometimes happen after one of them dies. It is plain from case law that a disappointed beneficiary, who should have benefited from the estate of the survivor of two individuals who had prepared mirror Wills (usually one or more of their children), can only recover his or her rightful share, if there is evidence of an agreement between the two mirror Will makers not to revoke. The oral evidence from the disappointed beneficiary is unlikely to be enough simply because his/her evidence is going to be largely discounted because it is “self-serving”. Independent evidence is going to be required which is usually a form of words in the mirror Wills themselves along with the lines that they have each been executed to reflect the other and with the agreement that they shouldn’t be revoked or changed. A case in point is Walters v Olins (see https://swarb.co.uk/walters-v-olins-ca-4-jul-2008/).
DISPUTING A WILL – HOW DO MIRROR WILLS CREATE AN ENFORCEABLE AGREEMENT NOT TO REVOKE OR CHANGE A WILL?
As mentioned, there must be evidence of an agreement not to revoke or change the Will. This doesn’t prevent it from being changed or revoked as the nature of a Will in English and Welsh law means that it can be changed or revoked at any time. However, it provides the disappointed beneficiary with the ability to enforce his or her right to a share of the estate which was promised to them.
In a Will contest or Will dispute claim then, it is possible for the disappointed beneficiary to enforce the agreement within mirror Wills whereby he or she should have inherited. The Courts regard the survivor of two individuals who had agreed not to change their Wills, as the Trustee over a Trust containing the property which was supposed to be subject to the agreement.
This was confirmed by Dixon J in Birmingham v Renfrew (see https://swarb.co.uk/birmingham-v-renfrew-11-jun-1937/) and the quote below:
‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . .”
In other words then the disappointed beneficiary can sue the estate of the last survivor of two individuals who had agreed not to revoke their Wills (but had done so) with a view to enforcing the terms of the trust which sheltered the property he/she should have benefitted from.
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