What is required in order to affect mutual Wills?
The recent case of Mclean v Mclean  has spun the spotlight on to the doctrine of Mutual Wills, providing some useful and updated commentary on the legal requirements and shedding light on why these are seen so rarely in practice.
Mutual Wills are Wills made by two people in the same or similar terms and which are underpinned by an agreement that neither party will alter or revoke their Will without the consent of the other during lifetime and/or after the death of the other. The effect is that, once one party dies, the other is bound to adhere to the terms of their own Will and cannot change it during their lifetime. The first to die can, therefore, rest assured that their wishes will be preserved and the joint estates will, eventually, pass in accordance with the terms of the Mutual Wills.
The agreement between the parties must be that the Wills are irrevocable and unalterable; however, this need not be a formal written agreement. In the case of Charles v Fraser , two sisters, Mabel and Ethel prepared what were essentially identical Wills, but were not expressly mutual. Mabel died in 1998 and, in 2006, Ethel changed her Will leaving her entire estate to her hairdresser, Mrs Fraser. Under their initial Wills, the sisters’ estates were divided between the same list of 15 beneficiaries, but now, due to Ethel’s amendments, Mabel’s friends and family were not set to inherit any of Mabel’s estate. A claim was issued and the Judge ruled that, whilst there was no express evidence to the fact, it was, on the balance of probabilities, clear that the sisters intended for their Wills to be irrevocable and unalterable; one would inherit the other’s estate and then leave the cumulative sum to the 15 beneficiaries. The court, in their decision, applied the earlier rulings in Goodchild  and Cleaver  that the agreement can be oral, or proved by clear evidence.
Mclean v Mclean
In the case of Mclean v Mclean, Maureen Mclean left her £300,000 estate to her son, Brett, the self-stylised Lord of Hastings, in order for him to have a place to live whilst caring for Maureen’s Parrot and Jenday after her death. This was a change from Maureen’s previous Will, much to the dismay of her stepchildren, who were disinherited under the new Will. The stepchildren advanced a claim that Maureen was not free to enter into a new Will as she had entered into Mutual Wills with their later father, Reginald.
At first instance, the Judge found that there were no Mutual Wills. The judgment stated that there was no contractual agreement between Reginald and Maureen, despite the fact that the Judge found that Maureen had expressly promised to Reginald that she would not revoke the Will and disinherit the stepchildren if Reginald were to predecease her.
You would not be criticised for assuming that, on appeal, the High Court would follow the ruling in Charles v Fraser and decide that, on the balance of probability, there had been an intention by Maureen and Reginald for their earlier Wills to be irrevocable and unalterable. However, on appeal to the High Court, the Judge found that, in the absence of clear proof of an agreement, Mutual Wills cannot be formed and that Reginald simply trusted Maureen not to change her Will; trust that was, evidently, misplaced.
Mclean v Mclean certainly appears to have increased the evidential burden on anyone claiming that Mutual Wills were made. Clearly, a clear contractual agreement is the strongest evidence that one can provide and the inclusion of a provision within both Wills that they are Mutual Wills will suffice. On the flip side, if you are concerned that a court may view your Will as being mutual, an express provision that it is not will go far in dissuading this notion.
It is, of course, the case that Mutual Wills will only be appropriate in certain circumstances; they are, by their very nature, limiting; family dynamics and personal situations can change and the last thing a testator may want in those circumstances will be a bar on them amending their Will. Our expert Private Client Advisory Team can assist with the preparation of your Will and our Contentious Trusts and Probate Team are on-hand to help if a dispute should arise.
This article was written by Sharon Bell, Legal Director. For any enquiries, please contact a member of our team on 01473 406386 or at firstname.lastname@example.org.