An agreement between parties to leave mutual wills can give rise to an implied or constructive trust which prevents the second to die from resiling from that agreement but a high level of agreement, akin to a contract, is required.
In McLean and others v McLean [2023] EWHC 1863 (Ch), the Chancery Division dismissed an appeal from a decision that the necessary agreement for mutual wills did not exist.
In June 2017, Reginald and Maureen McLean executed mirror wills which left their respective estates to each other if surviving and the residue to their four children in equal shares. Reginald died in March 2019 and Maureen took his estate. Shortly before her death in August 2019 she executed a new will leaving her entire estate to her son, Brett, the defendant. The claimants – Reginald’s three children by a former marriage – claimed that the 2017 wills were mutual wills.
The meeting note of the solicitor instructed to prepare the mirror wills recorded that he had raised with Reginald that should he die first there was no guarantee that Maureen would not change her will and leave everything to Brett. Reginald said that he trusted Maureen implicitly and she would never do that. The solicitor gave evidence at trial that Maureen responded to Reginald’s remark in similar vein, that she would not change her will and disinherit her stepchildren.
The county court judge held that for the doctrine of mutual wills to apply there has to be “what amounts to a contract between the two testators that both wills will be irrevocable and remain unaltered”. While neither Reginald nor Maureen contemplated a situation where either would change the 2017 wills because they trusted each other, the evidence did not clearly and satisfactorily demonstrate that there was a legally binding agreement between them that neither would do so without the consent of the other. Reginald was willing to rely on trust alone, which placed a moral but not a legally binding obligation on Maureen. An estoppel could not suffice in place of an agreement and the claim was not established on the facts.
The stepchildren’s appeal failed. The county court judge’s decision was one he was entitled to reach on the evidence. It was also the correct decision because a high level of agreement between the parties is required: expectation or trust is insufficient. The claim in proprietary estoppel also failed because there was no representation by Maureen, intended to be binding, that she would not revoke her will.
Louise Clark is a property law consultant and mediator
