From the courts

Mutual wills

The mutual wills doctrine might sometimes seem to be a survival from the past. Under the doctrine, two testators agree to make wills in an agreed form. If one of them dies, leaving a will in the agreed form, then the survivor is obliged to leave a will in the agreed form. If the survivor does not do so but makes a will in a different form that will is not invalid. However, the survivor’s estate is held in trust to give effect to the dispositions which would have applied, if a will had been made in the mutually agreed form. The will actually made therefore takes effect subject to those dispositions. Under the doctrine as developed by the courts, there is no requirement that the survivor should benefit personally from the will of the first to die. The agreed form of will may benefit only a third party. Nor is there any limit to the length of time which may elapse between the first death and the death of the survivor. In these circumstances, it is perhaps surprising that what the Courts have not done is to impose any requirement on the parties to record on the face of the will, or indeed by any formal means, that they have agreed to make mutual wills. It might be expected that professional advisers would discourage their clients from making mutual wills. Nevertheless, cases come before the Courts, which confirm that the doctrine remains in force. Most recently the Court of Appeal has discussed the evidence that may be required to substantiate a claim that the mutual wills doctrine applies ( Fry v Densham – Smith [2010] EWCA Civ 1410).