When a couple make mutual wills, they cannot make different wills later on without the agreement of the other

The power of mutual wills

Many people – usually couples – make wills which are similar. They leave assets, property and other bequests to the same people. An example would be a couple who leave everything to each other and then to their children. If these wills include an agreement to do this, and not to revoke the will without the agreement of the other, these will be mutual wills.

The importance of mutual wills in a will dispute

In a will dispute, the claimant will challenge a will arguing that it is invalid. We often talk about the more ‘suspicious’ aspects of will validity – situations where there has been undue influence by someone over the Testator. Another common reason for challenging a will include that the Testator was not well enough to make a will, and did not understand what he or she was doing. People can also argue that the will is invalid because it has not been properly signed and witnessed.

If there is a mutual will in existence, this will mean that any later wills are invalid, without need to challenge them using one of these other reasons.

13 later wills invalid thanks to a mutual will

In Legg & Anor v Burton & Ors, the claimants challenged the final will of their mother, June Clark, made in December 2014. This was the latest in a long line of 13 wills made since she a will she made at the same time as her husband in 2000. Her husband had died in 2001.

The wills made in 2000 by husband and wife mirrored each other with both leaving their property to the other, and if the other had died, then the estate was to be shared equally between the daughters – the claimants in this case. In contrast, the 2014 will left the first claimant £10,000 and the second £30,000 with the rest of the estate, valued in total at £213,000 (net) shared between other beneficiaries.

The defendants argued that the 2000 wills did not have the necessary agreement to make them binding, ‘mutual wills’. The claimants argued that they did.

Looking at the evidence, the judge agreed that the wills themselves were identical in all respects, there was nothing to say they were ‘mutual’ or that they agreed not to revoke the will without the agreement of the other one. The claimants argued that the circumstances that made the wills ‘mutual’ arose outside the will – that there was an equitable trust which arose from the wills. The first claimant had been present when the Testatrix and her husband had executed their wills in 2000. Both gave evidence that the wills had been described as being ‘set in stone’ and that neither party wished to change their will in the future. Although the judge recognised that the claimants had a financial interest in the outcome of the case, he accepted their evidence. He found that the principle of mutual wills had been engaged. As a result, the subsequent wills made by the Testatrix failed, and the 2000 will was the valid will.

Relying on a mutual will needs good evidence

This case highlights a common problem in will disputes – that of obtaining good contemporaneous evidence of what happened when the will was drafted. In this case, the judge accepted the evidence of the claimants, both of whom had been present at (or immediately after, in the case of the second claimant) the execution of the wills. Had the judge not believed their evidence, the outcome might have been different. It also highlights the need for a good solicitor to be involved in drafting the original will. Mutual wills should expressly include an acknowledgement that this is what the intention is, and that the people making the mutual wills agree not to revoke their will without reference to the other.

If you are considering a will dispute, perhaps because you believe there was a mutual will in place that would overturn a later will, we can help. We offer a ‘no win no fee’ arrangement for most will disputes, and provide a free will claim assessment to get the ball rolling.