An unusual case of Mutual Wills


Mutual wills are those made by individuals, usually a married couple, who agree not to revoke them without the consent of the other. Effectively, the parties enter into a legally binding contract not to amend or revoke their will. After the first individual dies the survivor is stuck with the terms of the mutual will, whatever the change in their own personal circumstances. This can cause real difficulties, particularly for those who wish to re-marry, or who later fall out with the beneficiaries of their mutual will.

For these reasons, solicitors generally advise couples to enter into mirror wills instead. These are wills which, as the name suggests, reflect the content of each other (though they do not need to be identical). The most common form of mirror will is for a married couple who each leave their estate to the surviving spouse on their death and then to their children (or other agreed beneficiaries) on the second death. The surviving spouse is not restricted from changing their will at a later date if they so wish, for example if they start a new relationship.

The case of Legg v Burton [2017] EWHC 2088 (Ch) is an unusual one in which Bernard Clark and June Clark made mirror wills in July 2000, which were later found by the Court to be mutual wills. The wills made in July 2000 provided for the surviving spouse to inherit on the first death and then the couple’s two daughters, Ann Legg and Lynn Burton, to inherit on the second death in equal shares.

Ann and Lynn claimed that they were invited by their parents to be present when they executed their wills in 2000. At this time it was acknowledged that Bernard and June never wanted to change their wills again and that they were “set in stone”. However, there was no clause included within the wills to confirm that they were mutual wills.

Bernard died in May 2001. From 2004 onwards June made a further 13 wills. Under these later wills Ann and Lynn were to receive progressively less, while June’s grandchildren and one of their partners were to receive more. This was due to deterioration in the relationship between June and her two daughters over the years.

Having considered the evidence and the credibility of the witnesses the Court found on the balance of probabilities that Bernard and June had made agreements both before and just after the execution of the wills made in 2000 that they would not change them. Therefore, June’s estate passed to Ann and Lynn in equal shares and the defendants received nothing.

The Legg v Burton case demonstrates the importance of seeking advice about both the content and binding nature of your will. It is a common concern of couples that should they die, and their surviving spouse re-marries, that their children (or other intended beneficiaries) may not receive any part of their estate on the death of the second spouse. There are various ways that such worries can be addressed, such as the use of life interest trusts. Professional advice from a solicitor experienced in will drafting is essential to ensure that those you wish to benefit on your death do so.

Paul Nickalls a partner at Newcastle law firm Sintons in the Personal and Family department and heads up the Wills and Probate Team. To speak to him please call 0191 226 3640, or email him at paul.nickalls@sintons.co.uk.

Emma Saunders is a Senior Associate specialising in contentious probate matters, including will disputes. To speak to her please call 0191 226 3293, or email her at emma.saunders@sintons.co.uk.


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