The conundrum of Mutual Wills
When a dispute over the distribution of an estate arises it is common for practitioners to hear close family members say that X and Y made “joint wills” during their lifetime evidencing a desire to leave the family home, personal heirlooms and money to close family members once they have both died.
Most often the disappointed close family members are the children of X and Y. They are often shocked and disappointed to learn that the parent last to die had made a new will leaving the family home and assets to their new spouse or that the children of the new spouse benefit and they do not.
The significance of the family members concerns and the possibility of a valid claim can be overlooked if the busy practitioner considers only the immediately available documentary evidence.
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The first line of enquiry is to consider all the wills and other testamentary instruments made by X and Y that can be traced to see if there is evidence of a joint agreement to bind their estates and that the agreement was intended to be irrevocable. Very often it is possible to locate a copy of X and Y’s previous wills. Does the wording of the wills evidence a mutually binding agreement? Is there a binding event? Is the available evidence such as to allow the court to reasonably conclude that X and Y entered into a legally binding agreement not to revoke their wills? If the evidence to confirm a mutual will is not conclusive is there a possibility of establishing a constructive trust?
Usually what the disappointed close family members are told by their lawyer is that X and Y do not appear to have made Mutual Wills but made Mirror Wills which could be revoked by a later will. Often there is not perceived to be a need to go back in history. However, as can be seen from the recent case of Legg and Burton v Burton and others  EWHC 2088 (Ch) practitioners should not be too quick to dismiss the concerns and beliefs of the disappointed beneficiaries but advise them to investigate the circumstances fully.
Legg & Burton
The facts of the case are interesting. Mrs Clark made no less than 13 wills between 2004 and 2016 all of which were rendered invalid by the judgment. The court determined that a will she made in 2000 at the same time as her husband was a mutual will binding her estate. Matthews HHJ stated at paragraph 67 of the judgment “…on the basis of all the evidence and other material before me, Mr & Mrs Clark expressly promised each other that having made their wills in the form they had they would not revoke them, and thereby engaged the principle of mutual wills.” The judge took account of all the witnesses in the case, equitable principles and obligations.
What evidence is required to prove that a Mutual Will existed? In Re Goodchild and another v Goodchild  EWCA Civ 1611 the Court of Appeal stated that for the doctrine of Mutual Wills to apply it is necessary to prove in evidence that a legally binding contract or agreement was agreed by X and Y although this has not been universally accepted. The courts have been willing to find in favour of a mutual will if there is evidence of a mutual agreement and the survivor ought not to be permitted to depart from that agreement. In Re Cleaver  1 WLR 939 the court was prepared to accept extrinsic evidence of an agreement and in Legg and Burton v Burton the judge was satisfied that Mutual Wills had been made on the evidence and documentation put before him. The judge had no doubt that Mr & Mrs Clark intended “that their wills should not be changed”.
Should, for instance, close family maintain that there was an agreement by the making of “joint wills” to leave property within a family that prospect should not readily be dismissed. It could be discovered to be true.
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