Wills - Mutual Promises

‘All to other’ wills, whereby both members of a couple agree to leave their entire estate to the other, are commonplace. It is less common for two people to agree to make corresponding wills, whereby each agrees to make a provision in their will in exchange for a provision being made in the will of the other.

In such cases, what is the legal position when one of the two dies? Can the other person then change their will?

The law in such circumstances is that the rights of the inheritor under the first will are limited with respect to the property they inherit under the ‘mutual wills’ doctrine.

In a recent case, the survivor sought to dispute that an agreement for mutual wills had been made. The mutual wills had originally been made to prevent the family of the survivor of the two people concerned from putting pressure on them to change their will. The agreement was recorded in a codicil to each of the wills.

The judge concluded that mutual wills had been created and the survivor appealed that decision, arguing that the agreement was insufficiently detailed in that he did not know what his rights were with regard to the assets that he had inherited from the deceased. He argued that the will did not bind him, but instead bound his personal representatives on his death.

The Court of Appeal’s decision was that a trust was created under the mutual will which immediately bound the survivor and that the precise terms of the trust thus created would have to be determined by the court on application by him.

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