Mutual Wills: Stand On One Legg And You May Go For A Burton

It is common practice for married, or even unmarried, couples to enter into what are commonly referred to as mirror wills, the usual format being that they will each leave their respective estate to the other on death and thereafter to any children they may have should the other predecease them. In the event that the relationship may subsequently end, or one of the parties passes away, the wills will often then be changed to reflect those events. The High Court recently revisited the test as to when mirror wills are in fact mutual wills, the impact of the latter being that if executed, the parties are prevented from subsequently changing their respective wills without having given the other sufficient notice.

Case Law

In the recent High Court decision of Legg and another v Burton and others [2017] EWHC 2088 (Ch) the testatrix, Mrs Clark, made joint wills with Mr Clark in July 2000 (“the Joint Wills”). The Joint Wills provided for their entire respective estates to pass to each other and thereafter to their two children. Mr Clark subsequently died on 16th May 2001. In the years that followed Mrs Clark made twelve further wills, culminating in that dated 12th December 2014 (“the 2014 Will”). The 2014 Will provided for the parties’ two children to receive legacies of £10,000 and £30,000 respectively and the residue to pass to Mrs Clark’s grandchildren.

Following Mrs Clark’s death her two children, the Claimants, issued proceedings asserting that the Joint Wills were mutual wills and as such the 2014 Will was effectively invalid. The evidence relied upon by the Claimants was effectively threefold. Firstly, the Joint Wills themselves, being in identical form, albeit pursuant to established case law that is not enough alone (Gray v Perpetual Trustee Co Ltd [1928] AC 3091, PC; Renfrew v Birmingham (1937) 57 CLR 666, 674; Re Cleaver deceased [1981] 1 WLR 939; Re Goodchild [1997] 1 WLR 1216, 1224; Lewis v Cotton [2001] 2 NZLR 21; Charles v Fraser [2010] EWHC 2154 (Ch)). The Joint Wills did not go as far as to state that they were mutual wills and indeed provided that the gift passed “absolutely and beneficially and without any sort of trust or obligation.” However the Court found that if there is a mutual will trust, it arises outside the will and thus such wording does not defeat the premise.

Secondly, the Claimants relied upon their own evidence of what was said and done by Mr and Mrs Clark on the day the Joint Wills were entered into. The First Claimant was present during the signing of the Joint Wills during which Mr Clark had asked the solicitor, in the words of the First Claimant, as quoted by the Judge, “whether everything was ‘set in stone’ because he said neither he nor my mother wished for anything to be changed again. Mr Reid [the solicitor] told my father that the law cannot stop someone from changing their will in the future. He mentioned that he was aware that my mother and father never wanted to change the terms again, and that their trust in one another not to make any future changes was enough.” The fact that everything was ‘set in stone’ was reiterated to the Second Claimant on her arrival shortly afterwards. Later that day the Claimants questioned their father as to whether reference to the agreement should be recorded in the Joint Wills or otherwise and he explained that they had no intention of changing them and Mrs Clark shouted from the kitchen ‘No I bloody won’t change it either.’

Thirdly, they relied on further extrinsic evidence upon which reliance can be placed as set out by Nourse J in Re Cleaver deceased [1981] 1 WLR 939 at 949C-F.

As can be noted from established principles, as cited by HHJ Paul Matthews in Legg v Burton, in order to succeed in a claim involving mutual wills it must be proven “that the testator made a legally binding agreement with the other testator that both would make their will in a particular form (not necessarily the same) and that they would not revoke them or (depending on the terms of the agreement) change them without notice to the other or others sufficient to enable that other or others to change their own wills as well, that they made their wills in that particular form and that they did not revoke (or change them without such notice), and the first of the testators to die did so, not having revoked (or changed) his or her own will.”

In the instant case the Joint Wills were in fact found to be mutual wills. In dealing with events after the passing of Mr Clark, HHJ Matthews stated “short of agreeing a release, or making a representation to found an estoppel, in law nothing that they could do thereafter could undo the equitable obligation binding their mother in relation to both the property which she received from her husband and also her own property which she had at the time of making the will. In substance, this refers to the house which they had bought, which, by their wills of July 2000, Mr and Mrs Clark at that time intended to pass on to their daughters… In equity at least, the clock of her testamentary freedom had stopped with the death of her husband, and thereafter she no longer retained the unilateral right to dispose of her assets that she had once enjoyed.”


It would appear from the above facts, that those instructed to draft the twelve wills that were executed following Mr Clark’s death, were entirely unaware of the existence of mutual wills, nevertheless it is of course always prudent to enquire as to the possibility of mutual wills having been executed at some time in the past when instructed to draft a will.

It may well be argued that even if that fact had been established by any of the twelve will drafters, it would not have assisted Mrs Clark if her wish was to resile from the Joint Wills. However, in the first instance such realisation would have saved Mrs Clark the time and expense of entering into twelve ineffective wills. Moreover, and perhaps more pertinently when considering those facts in the context of a future case, the appropriate question may be, what if Mrs Clark had sought to enter into the first of those twelve wills prior to Mr Clark’s death? In such a case she would have had the opportunity to resile from the Joint Wills and if not appropriately advised any will drafter may potentially be in difficulty.

One should also be careful to ensure that when instructed in a matter that has already become contested, sufficient enquiries are made to establish whether or not mutual wills have been executed.