When June and Bernard Clark decided to make a mutual Will with a legally binding promise never to change it, they probably hoped they were making things easy for their two children.
Thirteen Wills later, that turned out to be far from the case with daughters Ann Legg and Lynn Burton ending up in the High Court in a bitter dispute with Lynn’s own sons, Aaron and Michael.
Finally, a year after June’s death, and 16 years after Bernard’s, Ann and Lynn triumphed when Judge Matthews, sitting in Bristol, eventually ruled that the mutual Will their parents had made together back in 2000 was indeed binding on June’s estate and that her subsequent 13 Wills were all invalid.
This meant that the £324,000 estate was shared equally between Ann and Lynn with nothing at all going to the numerous beneficiaries named in subsequent Wills, including Lynne’s sons.
In July 2000, June and Bernard executed mirror wills leaving their entire estates to each other ‘absolutely and beneficially and without any sort of trust obligation’ and on the death of the survivor, to their two daughters, Ann and Lynn.
Ann was present at the time, Lynn had arrived later, and their parents had explained ‘their agreement that these Wills were to be further ‘set in stone’ and never changed again’. At the time Aaron and Michael were still children. Bernard died the following year.
When June said she wanted to add her granddaughter, Michelle, to the Will in 2004, Lynn reminded her of the promise she’d made to Bernard not to change it. As it turned out, June had already made another Will but five days later, changed it back.
There then followed another ten Wills – between 2004 and 2014 – made by June. As time went on, these Wills increasingly favoured her grandchildren over her daughters. Lynn’s daughter was diagnosed with cancer, and later died, and as she and Ann became less involved with their mother, Lynn’s sons took on many of the carer roles.
June’s final Will in 2014, left £10,000 to Ann and £30,000 to Lynn. The rest went to Aaron, Michael and other grandchildren. Ann and Lynn challenged this final Will and Lynn’s son, Aaron, who’d been appointed as executor, was the principal defendant in the dispute.
What does having a Mutual Will mean in law?
Mirror Wills are often used by couples to make sure that after one of them dies their joint assets will be used in an agreed way, for the benefit of their children, for example. The problem is that such “mirror Wills” can be changed at any time, including by the survivor, when one person has died.
Sometimes, though rarely, couples state on the face of the Will that they will not revoke their Wills and these are known as “mutual Wills”.
More commonly, the situation is that mirror Wills are made then revoked by later Wills and then evidence surfaces that the parties never intended their original mirror Wills to be changed. It is this type of case that pose problems for the courts and engages the doctrine of mutual Wills.
It must be proved that there was a binding agreement between the parties never to change the Will and this is where things can get tricky with the proof often relying not only on people’s memories of what happened sometimes years before but oral arrangements over written agreements.
What did the judge decide?
The Judge concluded that, on the whole, Ann and Lynn’s memories were reliable. This included June’s pride in being able to leave her treasured home to the next generation, how both daughters had been included when the mutual Will was made and that when June and Bernard made the Will in 2000 it was driven by a strong desire to make it once and once only and to do the right thing for their daughters.
He also found that June changing her Will back in 2004 after talking to Lynn, was also compelling evidence.
Judge Matthews finally ruled in the daughters’ favour, basing his judgement on the credibility of witnesses and on technical issues of equity.
He said: “On the basis of all the evidence and other material before me, Mr and Mrs Clark expressly promised each other that having made their Wills in the form that they had they would not revoke them, and thereby engaged the principle of mutual Wills.
“That being so, the testatrix (Mrs Clark) was not free unilaterally to alter her Will and make a new one inconsistent with that of July 2000, in the sense that, if she did so, her personal representatives would hold her estate on trust to perform the equitable obligations laid upon her under the doctrine of mutual Wills.”
Whilst it turns on its facts, this fascinating case shows that potential claims under the doctrine of Mutual Wills – often regarded as difficult to prove – can still succeed before the courts. It will need to be shown that there was a binding promise between the parties never to change their wills.
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