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Mirror will and mutual wills

In a recent case the High Court held, on the basis of witness evidence, that a married couple had made mutual wills, despite apparently express wording to the contrary in each will.

There are not many mutual wills and there is even less case law on the subject so when a case like this happens it is bound to be interesting.

Married couples often execute wills which are identical in their provisions, frequently giving the estate to the surviving spouse or if the spouse does not survive to the children.  This is commonly referred as "mirror wills".  However, not every mirror will is a "mutual will", indeed very few mirror wills are mutual wills.

In both types of will the terms of the will of one person will mirror the other person's will.  However, with an ordinary mirror will the survivor can make a new will after the death of the first to die without any constraints and without having to have regard to the will of the first to die. A mutual will on the other hand is a will which is also a mirror will but where the two testators enter into an agreement that they will not revoke their will without the consent of the other testator. The consequence of this is that if the first individual dies without having altered the mutual will, the surviving testator is not able to alter their own will. Indeed, if there is any later will made, it would be ineffective to the extent that its provisions are different to the mutual will.

The main reason why individuals make mutual wills is where both testators wish to ensure that specific intended beneficiaries benefit from their estate after the second testator dies.  This is often what the testators will be adamant about despite the fact that the arrangement is totally inflexible after the first of them dies. It would be usual to have something in writing confirming that the will is intended to be mutual. Conversely, very often in a mirror will there will be a provision confirming that the will is not intended to be a mutual will. 

In the recent case Legg and Others v Burton and Others [2017] EWHC 2088 (Ch) the Court found the wills to be mutual despite an apparent contrary wording in them. The judge also stated that mutual wills might not require a contract and that they could be based on proprietary estoppel. Estoppel is an equitable rule which applies in English law whereby a court may prevent, or "estop", a person  from going back on a promise they have made.

The result was therefore somewhat surprising and is perhaps a warning that a will may be considered to be mutual when this may not have been actually intended.

The facts of the case where as follows.

Mr and Mrs Clark had each made mirror wills in July 2000, each giving their estate to the surviving spouse or if the spouse did not survive then to their two daughters in equal shares.  The wills were professionally drafted by a solicitor who attested the execution. Both wills included the following clause:

“My trustees shall pay my residuary estate to my spouse absolutely and beneficially and without any sort of trust or obligation”.

The wills also appointed the two daughters as executors and trustees. Mr Clark died in 2001 and his estate passed to his widow without the need for probate.  Between 2004 and her death in 2016 Mrs Clark had made 13 separate wills, the last one being in December 2014 which left only small legacies to the two daughters with the remainder going to other beneficiaries.  In that will Mrs Clark appointed one of her grandsons as the executor and he duly obtained probate. 

The daughters challenged the 2014 will asserting that the original will executed in 2000 was one of a pair of mutual wills which therefore could not have been revoked by the later wills. The grandson executor defended the case on the basis that the 2000 will expressly provided that the estate was passing to the surviving spouse absolutely and beneficially without any sort of trust or obligation, therefore it could not have been a mutual will. 

The two daughters claimed that the parents had made an agreement not to change their wills and this was explained to both of them as well as to the rest of the family at the time the wills were made. The Judge listened to the evidence from witnesses and clearly was more impressed by the evidence from the two daughters. He also examined the will carefully and concluded that the additional words about the assets passing to the surviving spouse absolutely and beneficially did not exclude the possibility of mutual wills, rather that this was a standard form clause which is regularly found in wills of this kind. 

In conclusion, despite there being no direct evidence that an agreement for mutual wills was entered into, the Judge decided based on the witness statements that an agreement had been made and that a promise not to change the wills given orally to the daughters was binding.  The outcome of the case was that the two daughters inherited the entire estate and the beneficiaries named in the later will received nothing.

It may be of concern that even if the wills do not expressly state that they are mutual wills and there is an apparent provision that the survivor is to take absolutely and beneficially, this may not be enough to declare a will merely a mirror will.  If there is a dispute, the Court is entitled to take into account extrinsic evidence and the reliability or otherwise of any witnesses will be of paramount importance. 

When discussing wills with your clients, it is therefore important to explain that what is said about the will provisions may be just as important as what is written. 

Interestingly the Judge quoted a suggestion from an earlier case that it is inherently improbable that in this day and age a testator should be prepared to give up the possibility of changing his or her will in the future whatever the change of circumstances.  It has to be said that, generally speaking, it would be unusual to recommend that clients should make mutual wills, given that changing circumstances in families these days are so wide ranging and frequent. Surely when drafting any will flexibility is likely to be an important factor.  However, the Judge in the above case disagreed with this assertion, quoting an example of a testator who knows he is dying and therefore he will have little interest in preserving his freedom to change his will in the future but every interest in ensuring that his wishes are carried out even after the death of his own beneficiaries.

In short every testator’s circumstances will be different and all will depend on their wishes.  Clearly it is important though that those making wills are aware of the consequences of their words both written and spoken. 

Please note that this document was prepared by a third party and as such Brewin Dolphin is not responsible for the content or able to answer queries on the topics dealt with. While we believe it to be correct at the time of writing, Brewin Dolphin is not a tax adviser and tax law is subject to frequent change. Therefore you should not rely on this information without seeking professional advice from a qualified tax adviser, who should also be able to assist you with any questions on the content.

This document was prepared as a general guide only and does not constitute tax or legal advice.

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