Mutual or Mirror?

July 28, 2023

Although sometimes mirror wills and mutual wills can be confused, they have very distinct effects on the administration of an estate.


This is an interesting case which highlights the difficulties of arguing that a mirror will was intended to be a mutual will and the consequences of failing to agree a legally binding contract between the individuals who wish to form a mutual will.


The background to this particular case is that in 2017, husband and wife Reginald and Maureen executed mirror wills which left their respective estates to each other and the residue to their four children in equal shares. On 16th March 2019 Reginald died and Maureen took his estate. On 16th August 2019 Maureen executed a new will (“the 2019 Will”) leaving her entire estate to her son Brett, the defendant in this litigation and one of the four beneficiaries named in the previous mirror wills. Maureen died shortly afterward executing the 2019 Will on 27th August 2019.


Disinheriting step-children


The effect of the 2019 Will disinherited the other three children (her step-children). The three children claim that the 2017 wills were “mutual wills” by which Maureen’s estate came to be held in trust for all four children equally under the mutual wills doctrine. Brett contested that and sought that the 2019 Will be upheld. Whether there were effective mutual wills (rather than mirror wills) is the subject of this case.


The claimants also sought to rely on the doctrine of proprietary estoppel to engage the doctrine of mutual wills.


Mutual wills


The principal of mutual wills was set out in the case of re Dale, decd [1994] Ch 31 at p37D as follows:

The doctrine of mutual wills is to the effect that where two individuals have agreed as to the disposal of their property and have executed mutual wills in pursuance of the agreement, on the death of the first (“the first testator”) the property of the survivor (“the second testator”), the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills. The survivor may thereafter alter his will, because a will is inherently revocable, but if he does his personal representatives will take the property subject to the trust.”


This case considers in detail the requirements of a mutual will and the difficulty the claimants had in trying to prove that a “a legally binding obligation” was present rather than what Lord Loughborough LJ in Lord Walpole v Lord Orford (177) 3 Vew Jun 402, 419, described as a mere “honourable engagement”.


Upon appeal to the High Court, the appeal Judge Sir Anthony Mann dismissed the appeal finding in favour of the defendant and upholding the 2019 Will which disinherited the 3 children despite Maureen’s assurances to her husband when drafting the 2017 Wills that she would not do this.


It was found that “What is required to establish mutual wills is a clear agreement, whether strictly contractual or not. Expectation, or trust, is not enough. The evidence in this case established only trust.” [emphasis added].


Proprietary Estoppel


In relation to proprietary estoppel, there is no comprehensive definition however it is widely accepted to be based on three main elements;


  1. a representation or assurance made
  2. reliance by the recipient
  3. detriment to the recipient in consequence of his (reasonable) reliance.


In this case, the appellant Judge found that in the circumstances there was “neither the necessary representation intended to be relied on, nor reliance on any such representation” and as such the doctrine could not be applied.


However, interestingly, he stated “at least as a matter of principle, it is not easy to see why an estoppel should not operate in the realms of mutual wills if the evidence were clear enough (though in practice there may not be many cases where it would be likely to operate). Mutual wills operates in the realms of equity in order to prevent injustice, and that is what estoppels do as well.”


Therefore, whilst this principle wasn’t considered any further (given the decision on the facts), it raises an important point which could be referred to in future cases, where the facts allow it.


Practical takeaway

This case serves as a reminder and warning to those individuals who enter in to mirror wills believing that upon their partner’s death, their earlier wishes will be carried out. The doctrine of testamentary freedom applies to that surviving partner to do what they want with their estate even if that is not in accordance with the mirror will they entered in to. Some may find that unfair however, this does provide protection for the surviving spouse in the event that the circumstances of the beneficiaries pursuant to the mirror will change. For example, if one of the beneficiaries required more financial assistance than the others or there was a family dispute, it allows for the surviving spouse to account for those changes by making a new will.


As we know, there are no forced heirship laws in the England and Wales and therefore, as occurred in this case, if you die first, leaving your entire estate to another on the mutual trust that they will carry out your wishes, this could result in the disinheritance of your nearest and dearest.


Further, if a mutual will was intended, there is a strict application of the requirement to find a legally binding agreement was entered in to rather than a mere expectation on the basis of mutual trust.


From a practical perspective, when advising clients in relation to claims such as these one must advise the client about the risks in pursuing a claim when your key witnesses, the two parties to the “agreement” (whether that be a moral or legal agreement) are deceased.


Therefore, the Will writer’s evidence will be of paramount importance. Full and detailed notes of meetings with clients which set out the instructions provided by the individuals, together with the advice given are essential. However, this case also highlights that it is not simply what is in those notes that is relevant but what is omitted can be equally relevant. Although the solicitor in this case was able to accurately recall the meeting and provide a full note of the meeting as evidence, we know all too often that this is not always the case.


Finally, the doctrine of proprietary estoppel could be applied to these cases however potentially only in very limited circumstances with sufficient clear evidence to support that a promise had been made and relied on by the recipient to their detriment.


Sophie Brackenbury, Associate