In most cases a will is revocable at any time. Mutual wills are an exception to this rule in that 2 individuals (usually husband and wife) can agree how they will dispose of their property after death and execute mutual wills in pursuance of that agreement. On the death of the first individual the property of the survivor is held on an implied trust for the beneficiaries named in the will of the survivor. The survivor can alter his will but if he does his personal representatives take the property subject to the trust.
Charles and Others v Fraser August 2010
In this first case somewhat unusually it was not husband and wife but two sisters who were found to have made mutual Wills. Then carry on by saying despite lack of evidence in the solicitors file the Judge decided in this case that the sisters had intended their Wills to be mutual. Accordingly changes in the survivor’s Will after the death of the first sister, even though not affecting the deceased’s side of the family, were of no effect.
Fry v Desham Smith
It was said that a husband and wife had left mutual Wills. There appeared to be little or no evidence that the wife had actually given instructions for a Will. Nevertheless, the court seemed to want to ensure in a case such as this where there were step parents and step children that the “right people” should inherit. Accordingly the court held that on the first death an irrevocable trust was created which had the effect of defeating later Wills made in favour of the Claimant.
For many years solicitors were under the impression that if they wished to make mutual Wills they would express the fact that they were mutual in the body of the Will. Now the opposite appears to be true in that if a husband and wife make mirror Wills then a good solicitor will put in an express provision saying that there is no intention to make a mutual Will (unless of course that is the intention). What this does mean is that where mirror Wills were made if the survivor changes his or her Will after the first death to disinherit some of the people who would have originally benefitted from their Will then those people have better prospects of challenging the new Will than they had before these two cases were decided. For more information, particularly if you are one of those people disinherited by a changed Will or if you are concerned that you may be caught by this trap, please contact us.