The High Court has recently rejected a mutual wills claim, in the case of Winter & Anor v Winter [2023] illustrating just how difficult these types of claims can be, especially where there is little documentary evidence of any such agreement by the testators to bind one another.
Mutual wills are created when two people make a binding agreement to make their wills in a particular form and agree not to revoke them or (depending on the terms of their agreement) change them without giving the other the opportunity to do the same. Upon the death of the first to die, the survivor is bound to give effect to their agreement.
Many families in the UK have step parents, second marriages, and children from different relationships. Sometimes therefore, in circumstances where a testator has remarried, they will wish to benefit their new spouse in their will, but only on the understanding that when their spouse dies, those assets they received will then pass to the testator’s biological children (rather than their new spouse being able to decide who to pass them on to).
In the case of Winter & Anor v Winter [2023] Richard and Adrian Winter brought a claim in relation to their father Albert’s estate. Albert died in 2017 leaving a will made in 2015, which gifted nearly all his estate, including his shares in the family business, to a third son, Philip (the defendant).
The claimants argued that Albert and their mother Brenda (who had passed away in 2001), made mutual wills back in 2000 leaving their shares in the family business equally among the three siblings, and therefore Albert’s 2015 will was not valid, as he was contractually bound by the terms of his earlier 2000 Will.
The defendant argued that the wills were not mutual, and as such, their father was free to change his will at any time.
Ultimately the court agreed with the defendant and found that no documentary evidence of any such agreement between Albert and Brenda existed. The court also concluded that there was no evidence to support the mutual wills claim in the files held by the solicitor who had advised Albert and Brenda. In court, the solicitor who had previously acted for the couple gave evidence that nothing in the circumstances had suggested it was the couple’s intention to make mutual wills.
The claimants’ claim failed. The court commented ‘the mere fact that two testators have made wills in the same form provides no basis for inferring an agreement that the second to die is irrevocably bound not to alter their will after the death of the first to die’.
The claimants did however succeed in a separate claim that assurances in relation to the family business, given by Albert and Brenda throughout their lives were sufficient to give rise to proprietary estoppel.
At Michelmores we have considerable experience bringing and defending will claims. If you have any queries, please do get in touch with Emma Bryson or another member of our Disputed Wills & Trusts team.
