It is possible for two people to leave Wills where, on the first death, the survivor is not free to unilaterally alter their Will and make a new one inconsistent with the mutual Will. If that person does so, their representatives would hold that estate on Trust to perform the equitable obligations arising from the adopted mutual Will.
In the last few years, there have been a number of decisions on mutual Wills, one of which reached the front pages of the popular press. You may recall seeing a picture of a very disappointed Mrs Fraser after the Court ruled that the Testatrix could not change her Will to benefit Mrs Fraser to the tune of £300,000.
Last year, another case involving an alleged mutual Will came before the Court. In Legg v Burton in July 2000, a husband and wife made Wills in the same terms, a not uncommon scenario. They both left their estate to the survivor and, on the second death, to their children, again not uncommon. The Wills did not specify if they were mutual or not. The survivor later fell out with her children and made a number of new Wills, the last of which mainly benefitted her grandchildren. So, the children sued the grandchildren, saying that the parents had expressed the wish that their Wills be “set in stone”. The Court was satisfied that this was indeed what they intended, and so the Wills were mutual and could not be changed following the first death.
It is for that reason that most Private Client practitioners will advise against making mutual Wills. There are usually many better ways of achieving what the parties seek without tying their hands in relation to Will drafting. Indeed, it used to be the case that practitioners would insert a clause saying that the Will was intended to be mutual if they were unable to persuade a client against it. Nowadays, it is more common to see a clause that says that the Will is not intended to be mutual, to avoid just the sort of finding that was made in Legg. The evidence of the children was that the Testators had expressed their desire that the Wills should be set in stone in front of their solicitor. If that was indeed the case, it is surprising that he did not set that out in the Will and, equally, that he was not called to give evidence. It would be unusual, in this day and age, for a specialist practitioner not to deal with this issue, but more generalist lawyers may not be up to date on current best practice.