Mutual Wills and Proprietary Estoppel

In ‘From the Courts’, on p. 4 there is a note of the decision in Legg v Burton [2017] EWHC 2088 Ch. This was a case which concerned Wills made by a husband and a wife. They were “Mirror Wills” under which each left their estate to the other if he or she survived. In the event that the other spouse had already died then each would leave the whole estate to be shared equally by their two daughters. The husband died first and his Will took effect. However, following his death the wife changed her Will on a number of occasions, so that the last Will she left included other beneficiaries as well as her daughters. The two daughters argued, successfully, that their parents Wills had been Mutual Wills so that, following the death of their father, their mother was bound to leave her estate to them. One of the essential requirements, for Mutual Wills doctrine to apply, is that there should have been an agreement between the testators to the effect that the Wills, in the agreed form should be irrevocable. In the High Court HHJ Matthews held that the parties had so agreed. However, the principal asset was the family home, and this raised the question as to whether, because the Mutual Wills Agreement concerned land, this required the “Agreement” between the parties to satisfy the conditions laid down in s2 Law of Property (Miscellaneous Provisions) Act 1989. In other words, the terms of the agreement would have to be set out in a document signed by the parties. It would be unlikely that such a document would have been signed at the time mutual Wills are made. In Legg v Burton, Judge Mathews discussed the rather unsatisfactory case law, and suggested that the solution to the problem might be provided by invoking the doctrine of Proprietary Estoppel. This necessitates an exploration of the position of the surviving testator, and the implications of the “Constructive Trust” over, not just any property which he or she inherited under the Will of the first to die, but possibly over also over his or her estate as a whole. In Legg v Burton the following observations were made: