Mutually assured

Although the doctrine of mutual wills is seldom applied post-death to a surviving testator's estate, many are likely to come across it during their practice. Particularly, as a creature of equity, the doctrine's flexibility and the circumstances in which it can be applied should be noted.

The doctrine arises when two testators make wills (usually in identical or mirror terms) containing reciprocal provisions as to the distribution of their estates, and agree that they will not revoke their wills. It operates to create a remedial constructive trust over the testator's estate, which usually comes into effect when the surviving testator revokes their will, changing the reciprocal provisions and thus the destination of their estate.

It entitles the beneficiaries of the revoked will to compel the executors named in the surviving testator's last will, to administer the estate in accordance with the terms of the revoked will to their benefit. They can apply to the court for an order that the estate is held on constructive trust to give effect to the provisions of the revoked will.

The decisions in Charles Fraser and Ors v Fraser [2010] EWHC Civ 2154 (Ch) and, Fry v Denham-Smith [2010] EWCA Civ 1410, illustrate the application of the doctrine in practice and how it can be applied in circumstances where the evidence of mutual wills is not obvious.

In Charles Fraser two sisters who lived together had made mutual wills in substantially reciprocal terms. Neither will contained any record that the wills had been made pursuant to an agreement between the sisters, but it was apparent from the provisions of the wills that the terms must have been carefully discussed and agreed.

In Fry, there was no evidence of a mutual will by the surviving wife but, the court found that the wife had executed such a will before the husband executed his final will and, that it was destroyed when the wife made her homemade will.

The courts have found that in order to establish a case of mutual wills, the beneficiary must be able to show that the testators had an agreement that their wills were intended to be irrevocable; the agreement may be incorporated in the will or proved by extraneous evidence; it may be oral or in writing; the agreement must be established by clear and satisfactory evidence on the balance of probabilities; the beneficiaries bear the onus of establishing there was an agreement between the testators to not revoke their wills; and the court must weigh the inherent improbability of a testator being prepared to give up the possibility of changing his or her will in the future, whatever the change of circumstances.

In Charles Fraser the court's finding of mutual wills was based on a number of significant factors:

• There was a complex division of shares between each side of the family (some 40 shares to different beneficiaries). This strongly suggested that the sisters intended to be bound by the agreement.

• Family and friends of the deceased provided cogent evidence that both sisters understood the wills to be 'written in stone' and 'binding'.

• The estates of each sister derived from their earlier marriages and each were conscious that the assets of the survivor would derive in part from the family of the first to die, and ought, in fairness, to be shared equally with that sister's family.

The case of Fry was unique in that the second mutual will was never produced, even in copy or draft form. The judge merely inferred its existence from the testators' presumed wishes at the time, and from the testimony of one of the parties to the case, where detailed evidence of conversations were critical.

The doctrine applies where there is clear evidence of the mutuality, either on the face of the will or the will file itself. It may however also be applied in those circumstances where there is enough extraneous evidence (such as in Charles Fraser and Fry) to show with sufficient clarity the testators' intentions. 

Lloyd Junor is a partner at Adams and Remers

He writes the regular in-practice article on wealth structuring for Private Client Adviser