Probate actions—mutual Wills
Produced in partnership with Adam Draper of Shoosmiths

The following Wills & Probate practice note produced in partnership with Adam Draper of Shoosmiths provides comprehensive and up to date legal information covering:

  • Probate actions—mutual Wills
  • Establishing the existence of a mutual Will
  • What type of trust—the floating trust?
  • Additional points
  • When do disputes concerning mutual Wills occur?
  • Standard and burden of proof
  • Procedure and evidence

Probate actions—mutual Wills

The term ‘mutual Wills’ is used to describe joint or separate Wills made as a result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries.

The court recognises that all Wills can be revoked but in the case of mutual Wills, equity will protect and enforce the interests created by the agreement for the benefit of the beneficiaries.

Mutual Wills therefore allow individuals to crystalise their wishes so that their estate passes on the second death in accordance with those wishes.

Establishing the existence of a mutual Will

The law as to what constitutes a mutual Will is helpfully summarised by John Gaunt QC at paragraph [52] of his judgment in Charles v Fraser:

  1. mutual Wills are Wills made by two or more persons, usually in substantially the same terms and conferring reciprocal benefits, following an agreement between them to make such Wills and not revoke them without the consent of the other

    In Dufour v Periera, the court confirmed that the mutual Will contract can be revoked during the lifetime of the parties if a notice to revoke is provided. However, if the contract continues until the first death, then the estate is held under the terms of a constructive trust. Any disclaimer made by the survivor does not frustrate the interests of the intended beneficiaries under the contract

  2. for

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