Mutual Wills: a case law update

In 2017, a husband and wife, Reginald and Maureen McLean, made mirror wills, leaving their respective estates to each other on the first death and then equally to their four children.  Three of those four children were Reginald’s children from a former marriage.

The solicitor drafting their wills warned Mr and Mrs McLean that if Mr McLean were to pass away first, there was no guarantee that Mrs McLean would not change her will and leave her entire estate to Brett (being her only son).  Mr McLean explained that “he trusts his wife implicitly.  They have been married for 45 years and there is no way she would do this”.

Mr McLean died in March 2019, leaving his entire estate to his wife.  Just weeks before her death in August 2019, Mrs McLean wrote a new will, leaving her entire estate to Brett.

Mrs McLean’s three step-children subsequently issued court proceedings, arguing that the 2017 wills were mutual wills.   

Similar to mirror wills, mutual wills are made by two people, typically on the same terms. However, unlike mirror wills, mutual wills are made with an agreement that neither party will amend or revoke their will during their lifetime without the other’s consent, or after the first death.  This means that the terms of the will remain binding on the survivor after the first death.  Any later will made by the survivor will effectively be void.

The step-children attempted to rely on the conversation Mr and Mrs McLean had with their solicitor in 2017, arguing that it amounted to an express agreement between the couple that they would not change their wills.

Unfortunately for the step-children, the judge disagreed.  It was decided that the evidence did not show that there was a legally binding agreement not to change their wills.  In fact, the evidence showed that Mr McLean was willing to rely on trust alone and did not see the need for a legally binding agreement.  The judge ruled that the obligation on Mrs McLean not to change her will was simply a moral one.

On appeal, the appeal judge upheld the decision, maintaining that clear evidence, demonstrating a level of agreement akin to a contract, is required to establish mutual wills.

It is insufficient to rely only on expectation or trust.  The evidence in this case only established trust – Mr McLean indicating that he trusted Mrs McLean not to change her will were words of supposition, not agreement.

This case highlights the high bar that needs to be overcome to show that wills are mutual wills.  

Save for an express recorded agreement between the two testators, the courts will likely be reluctant to rule that the survivor was not permitted to change their will at a later date.

The court will only intervene in mutual wills cases on an equitable basis, where it would be unconscionable for the surviving party to depart from the agreement after they have received the deceased party’s estate per the terms of the mutual wills agreement.

If you need further advice on this topic, please do not hesitate to contact our Litigation or Private Wealth departments. 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.