A recent decision in the High Court in England has highlighted the difficulty in challenging a Will on the basis of the principle of mutual Wills. In the case of Winter & Anor v Winter [2023], two brothers sought to challenge their father’s Will on the basis of this legal principle, which is an agreement where two people prepare their Wills in an agreed fashion and agree not to amend or revoke their respective Wills without the consent of the other. Upon the death of the first testator, the survivor must abide by the agreement not to change his or her Will.
The Winter family ran a family business, owned by parents Albert and Brenda. Albert and Brenda had made Wills leaving their respective interests in the family business equally between their sons. Brenda died in 2001 and her share of the business was duly divided between the sons. However, when Albert died, he left his residuary estate including all his interest in the business to his son Philip by a later Will which he had prepared in 2015. The claimants, Albert’s other two sons, argued that the 2015 Will was not valid as the couple had previously intended to make mutual Wills and therefore Albert was bound by that agreement.
However, the evidential bar for proving that Wills are mutual is very high. The court found that there was no documentary evidence of mutual Wills having been made. Albert clearly felt he could freely make a new Will in 2015 and that there was no evidence of any contractual agreement or intention between Albert and Brenda, either on the solicitor’s file or otherwise. Instead, their Wills should simply be viewed as mirror Wills, as they reflected the same wishes but did not impose a restriction on editing the contents of either Will without permission.
The two disappointed brothers brought this case before the court as they claimed that during the life of both Albert and Brenda, there was a clear focus on running the partnership equally and building this business for the sake of each of their futures. They told the court how on several occasions, despite the business doing well financially, the sons were encouraged to take little pay and instead reinvest this in the business. Therefore, while the court denied the claim in respect of mutual Wills for lack of documentary evidence, the claimants did succeed in a separate claim under a different doctrine called proprietary estoppel. The court granted their claim on the basis that assurances had been made to the brothers by Albert and Brenda, on which they had relied to their detriment.
As well as serving as a reminder of the importance of considering earlier promises made when writing Wills (particularly where family businesses and farming partnerships are involved), the case also highlights the importance of carefully recording testators’ intentions around the making of mutual Wills. Indeed, it is relatively rare that clients would wish to enter into any kind of contractual agreement, and often the familial issues that mutual Wills are intended to address are better solved through other mechanisms such as life interest trusts.
If you have questions about Wills or estate planning, or about any of the issues raised here, please contact Fiona Kirkpatrick in our Private Client team for more information.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.
