Mutual wills used to be an attractive option to couples seeking peace of mind about how their combined estates would be distributed.

The recent case of Legg and others v Burton and others demonstrates how restrictive mutual wills can be on the survivor and why couples now tend to reject mutual wills in favour of more flexible options.

What is a mutual will?

The equitable doctrine of mutual wills is where two or more individuals agree to make their wills in a particular form and agree not to revoke or amend them without the consent of the other individual(s).

The agreement forms a legally binding contract between the individuals which, upon first death, prevents the survivor(s) from amending their will.

Where there is a dispute over the existence of mutual wills, it must be proved on a balance of probabilities that there was a legally binding contract between individuals not to revoke or amend their will without the other individual’s consent. A common intention, expectation or desire is not sufficient.

The facts

Mr and Mrs Clark made wills on identical terms in July 2000. They gifted their residuary estates to each other ‘absolutely and beneficially and without any sort of trust or obligation’ and in default to their two daughters, Ann Legg and Lynn Burton, in equal shares. The 2000 wills remained unchanged on Mr Clark’s death on 16 May 2001.

Following Mr Clark’s death, Mrs Clark made a total of 13 wills. The terms of her wills increasingly departed from the terms of the 2000 wills by benefiting her grandchildren at her daughters’ expense. Mrs Clark had fallen out with her daughters in 2010.

Mrs Clark’s final will dated 12 December 2014 left unequal legacies to Ann and Lynn of £10,000 and £30,000 respectively, and largely benefited the grandchildren.

The claim

Following Mrs Clark’s death in 2016, the daughters brought a claim seeking a declaration that Mrs Clark’s estate was held on trust for them in accordance with the provisions of Mrs Clark’s 2000 will.

The defendants argued that because Mr and Mrs Clark had gifted their residuary estates to each other ‘without any sort of trust or obligation’, the 2000 wills could not be mutual wills.

The evidence

The daughters gave substantial evidence about what was said and done on the day that Mr and Mrs Clark executed the 2000 wills.

  • In Ann’s witness statement, she said that she was present when the 2000 wills were signed and recalled her father asking the solicitor to confirm that ‘everything was set in stone’. She recalled the solicitor responding that ‘he was aware that my mother and father never wanted to change the terms again, and that their trust in one another not to make any future changes was enough.’
  • Ann recalled her sister Lynn arriving after the wills had been signed and her parents telling Lynn that ‘these Wills were to be ‘set in stone’ and never changed again.’ Ann recalled asking her parents whether a clause needed to be added to their wills confirming their agreement and her parents replying that they had no intention of making any changes.
  • Lynn’s evidence was similarly detailed and corroborated Ann’s account. Lynn also recalled her parents’ explanation that they had made mutual wills so that their intention ‘to ultimately benefit Ann and I would not be frustrated.’ Lynn also recalled her mother saying that ‘they had only purchased their house in the first place so that they could provide Ann and I in the future.’

The defendants could not give any direct evidence about what happened as they were children at the time when the wills were executed.

Court judgment

The judge noted the wording of the 2000 wills and held that a mutual will trust could only arise outside the will.

The judge considered the daughters’ evidence and found there were ‘too many features of the story in the present case which ring true for me to reach the conclusion that this story has been misremembered in any significant particular.’

The judge said that because Mr Clark died 10 months after making the 2000 will, the event was a ‘one-off’ and would stick in the daughters’ memories. The judge also found the evidence of their parents’ aspiration to pass their home on to the next generation to be compelling.

In consequence, the judge found that Mr and Mrs Clark had ‘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 also found that ‘they intended to benefit their daughters, in equal shares, and no one else.’

The judge concluded that Mrs Clark’s estate ‘must be held by her personal representatives on trust to give effect to the form of the will which she made in July 2000, and not as set out in the will of December 2014.’

This case serves as a useful reminder to couples thinking about making mutual wills to weigh up the comfort of knowing how your combined estates will be distributed against the discomfort of forever requiring another’s consent in order to change your will.