Stopping the clock of testamentary freedom
It is commonly anathema to imagine giving up the right to alter one’s will. After all, some dramatic change in fortunes could make such an alteration a priority.
Yet that is the seemingly unpalatable effect of mutual wills, an equitable doctrine which provides that one testator may make a legally binding agreement with another (whether oral or written) that both should make their wills in a particular form and that they will not revoke them or change them without notice to the other. At the death of one of the parties to such an agreement the will of the survivor will be binding on their own estate upon their death, notwithstanding any number of changes to it in the meantime.
The inflexibility of mutual wills leads many private client lawyers to advise against them. It also means an uphill struggle for litigant claimants (usually the beneficiaries of the original will) seeking to prove that an agreement of mutual wills was made. Yet a recent High Court judgment has provided a reminder of the circumstances in which mutual wills may be desirable, and illustrated that the heavy evidential burden on those seeking to prove a mutual will is by no means insurmountable.
The case involved two daughters alleging that their parents had made mutual wills in 2000. The wills said to be the subject of the agreement mirrored each other’s terms (essentially each giving the property of the maker to the surviving spouse absolutely, but in the event that the spouse did not survive the maker then to the daughters in equal shares).
The father died in 2001, and in the years following his death the mother made more than a dozen further wills (without any suggestion of undue influence or incapacity) up until her death in 2016. Over that period the mother and daughters’ relationship deteriorated, whilst that between the mother and her grandchildren became ever closer, such that the grandchildren were increasingly favoured by the wills that the mother made in later years.
The daughters claimed that at the time the original wills were made, their parents expressly agreed with each other that their wills were “set in stone” and had explained to their daughters that they had made their agreement so that each could feel confident that their wishes would be respected after they had both died. The claimants’ evidence was an account of events and discussions some 16 years ago that had not, at the time, been set down in writing, and extended to a vivid description of an exchange with their father about the binding nature of the wills to which their mother was said to have contributed with the phrase “No I bloody won’t change it either”.
The judge recognised the weight of the burden on those attempting to prove, on the balance of probabilities, an oral agreement of mutual wills, citing various authorities for the propositions that there was an inherent improbability of husbands and wives being prepared to bind themselves not to revoke their wills, whatever the circumstances; that all claims to the property of deceased persons must be scrutinised with very great care; and that oral evidence on such matters from those who stood to benefit was to be treated warily and with scepticism.
Yet the judge also highlighted the need to recognise those circumstances in which mutual wills might quite naturally arise. For example, a testator who knows he is dying may have little interest in preserving his freedom of testation but every interest in tying down that of someone else, who may be prepared to agree out of sentiment, or in the knowledge that such an agreement was necessary if they were to ever gain control of the first testator’s property. The fact that textbooks may caution against mutual wills does not mean that the same factors will be taken into account by all those testators who don’t have the benefit of sophisticated advice. The judge also recognised that the agreement of mutual wills can be made subject to any number of qualifications, perhaps limiting the agreement to certain assets or providing terms on which the agreement could be changed.
On the evidence before him the judge accepted the claimants’ evidence and found that the alleged agreement of mutual wills had been made, the effect of which for the mother was that “the clock of testamentary freedom had stopped with the death of her husband, and thereafter she no longer retained the unilateral right to dispose of her assets that she had once enjoyed.” In essence, the particular circumstances of a given case will be crucial. Yet it would seem that the idea of making a mutual will is not, in itself and in the eyes of the courts, as inherently improbable as some may think.
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