Emily Peacock, Trainee Solicitor in the Private Wealth Disputes team discusses the recentIan Paul McLean and Ors v. Brett McLean case and the subject of mutual wills.
Overview
The county court recently considered the law of mutual wills in the unreported case of Ian Paul McLean and Ors v. Brett McLean, serving as a reminder that for two or more wills to be considered “mutual”, it is essential that a binding contractual agreement not to alter or revoke the wills was entered into, whether explicitly or implicitly, by the testators.
The Law
Defined
Mutual wills are created where two or more testators (people making wills) execute wills that usually include reciprocal clauses disposing of property under them, for the benefit of the same third party, with a promise that the reciprocal will not be revoked, creating between the testators a binding contractual agreement (but see Legg v. Burton [2017] EWHC 2088 (Ch) where the High Court held that mutual wills could be established despite the absence of such clauses provided there was a common intention by the parties and a corresponding course of conduct on the basis of what is known as a common intention constructive trust).
Effect
Such an agreement results in the relevant property (whether this is a house, an object or even the entirety of an estate) being held for the beneficiary/ies of those wills on a constructive trust.
Where testators party to mutual wills each die with a valid mutual will, the relevant property will pass to the third party, generally on the death of the last surviving testator (although testators do not necessarily have to benefit the surviving spouse, Re Dale, Proctor v. Dale [1994] Ch 31, [1993] 4 All ER 129).
Where, however, the surviving testator of a mutual will subsequently revokes or amends their will, the third party has the right to seek an equitable remedy to ensure that the relevant property remains held on constructive trust by the personal representatives for their benefit.
Requirement for a binding contractual agreement
In the event that a party seeks to assert that they have such a remedy, they must first establish that the testators did indeed create mutual wills. Case law serves to establish the nuances surrounding this requirement.
The creation of a binding mutual agreement between testators is an essential element of proving that wills are mutual. Each will may in fact contain a clear indication of a contract by way a of clause (Re Green, Lindner v. Green [1951] Ch 148, [1950] 2 All ER 913). However, absent a record of such an agreement in the respective wills, an irrevocable agreement may be established by extraneous evidence. Evidence must, however, on the balance of probabilities, prove that a contract arose between the testators on the terms that the reciprocal will be irrevocable and unaltered (Charles and Others v. Fraser [2010]EWHC2154(Ch)). That is, the surviving testator is precluded from amending their testamentary wishes (Re Goodchild [1997] 3 All ER 63, [1997] 1 WLR 1216).
However, the mere fact that two wills are drafted to the same effect is not in itself sufficient to establish an intention to create a binding agreement and, while this may be a relevant circumstance, the whole of the evidence must be considered to prove an intention to create a binding agreement between the testators (Re Cleaver, Cleaver v. Insley [1981] 2 All ER 1018, [1981] 1 WLR 939 and Charles).
Ian Paul McLean and Ors v. Brett McLean
The Facts
The court revisited this requirement for a ‘binding contractual agreement’ in the recent case of Ian Paul McLean and Ors v Brett McLean, H10CL283 (unreported) in determining whether the wills of Reginald McLean and Maureen McLean were mutual wills. The wills, drafted in 2017, left the testators’ estates to each other and subsequently the residuary estate on the death of the surviving spouse to the claimants (Reginald’s children) and the defendant (Maureen’s son) in equal shares
In 2019, however, following Reginald’s death, Maureen revoked the 2017 will and executed a new will, leaving her entire estate to the defendant.
The claimants sought to assert that the 2017 wills were mutual wills and that, as such, a constructive trust came into existence, on the basis that Maureen’s residuary estate was held for the benefit of the claimants and the defendant in equal shares. The defendant countered this by arguing that 2017 wills were invalid either on the basis that Reginald lacked capacity or that Maureen had been unduly influenced. Further, the defendant argued that the 2017 wills were merely “mirror wills”, and not mutual wills, and therefore no binding contractual agreement had been established.
The Judgment
The Recorder first addressed the question of the validity of the 2017 wills and, having established both wills to be valid, moved on to consider whether a binding contractual agreement existed between Reginald and Maureen.
While the Recorder’s judgment with reference to the validity of Reginald’s will on the defence brought is not strictly relevant to this article, it did serve as a reminder of the importance of contemporaneous evidence of solicitors assisting in executing a testator’s testamentary wishes. In particular, the Recorder relied heavily upon evidence from the solicitor who assisted the testators in executing their 2017 wills to establish that the defendant failed to raise any real doubt as to Reginald’s capacity, given that the 2017 will prima facie appeared to be valid.
Having established that the 2017 wills were both valid, the Recorder referenced the plethora of case law that prescribes that a requirement of a mutual will is the existence of a legally binding agreement between the testators. In line with case law, the Recorder considered extraneous evidence; a letter written by the testators to the claimants and defendant (that made reference to a will and the couples’ belongings) and the evidence of the solicitor who assisted in advising the testators’ in their execution of the 2017 wills.
The letter failed to reference any agreement between the testators as to the disposition of the residuary estate and, absent any other detail indicating such an agreement, was not considered to be sufficient evidence to establish a binding contract.
Crucially, evidence given by the solicitor showed that he had not advised the testators on the concept of mutual wills; in fact, there had only been reference during their meeting to Reginald trusting Maureen implicitly not to revoke or amend the will if she were to survive him. This reliance on trust alone did not amount to a binding contractual agreement and, consequently, the testamentary documents were not considered to be mutual wills.
Practical Considerations for Practitioners
McLean and Ors v. McLean affirms the Law Society Wills and Inheritance Protocol 2013 at paragraph 10.5.2, that a solicitor should provide a written explanation to the prospective testators as to the effect of mutual wills, that is, the binding nature of the agreement and the risks inherent to this. Further, a note of the testators’ intentions to create a binding agreement as to the disposition of the relevant asset(s) should always be recorded (as stated by the Court in Charles). Should a matter become litigious, such contemporaneous evidence may be crucial in ascertaining whether the testators did indeed enter into a binding agreement as to the disposal of an asset.
A practitioner may also wish to consider other legal instruments which may affect the testators’ agreed disposal of an asset without the inherent risks involved in mutual wills, such as by way of a trust deed. This may be guided by the circumstances of the instruction, for example, the age and health of the testators, the relationship between the testators, the relationship of each testator with the third party, the value of the estate, and the type of asset or assets being disposed of.
