Legg & Anor v Burton & Ors  EWHC 2088 (Ch) (11 August 2017)
Most lawyers specialising in wills or probate would tell you that mutual wills are to be avoided at all costs – the professional bodies that supervise or advise us put out technical notes emphasising this point.
However, as the Judge in this case remarked – “each testator sees only his or her case”.
It is perhaps because we see the cases that go wrong – the arguments about what the deceased would have wanted, that we make the recommendations that we do – it is not that we have the benefit of hindsight (which is very specific to each case) but that we have sufficient experience to know that things do go wrong, even when least expected – the best laid schemes gang aft agley .
In this case, the executors of the last made will of the deceased, had they been personally unaware of the will making history, would have had no indication that the testatrix had been a party to a mutual will – there was no textual evidence of any agreement that had been formed between the testatrix and her late husband – nor was there any confirmation of mutuality in the wills that were first made by the couple. Having examined the evidence of the witnesses and associates of the couple, the judge in this instance concluded that the will of the husband had been made on the basis of an agreement with the wife that she would not change the will that she was making, after he himself had died- in fact he asked his solicitor to comment on the subject at the time and was reassured by his wife at the time that she would not change it “My Mother actually heard this comment, and she shouted through from the kitchen ‘No I bloody won’t change it either’…”– a reassurance that he relied upon when executing his will.
The effect of this decision is to reinforce the earlier decision of Re Cleaver deceased  1 WLR 939 where the fact that two wills had been made in essentially similar, mirror terms did not create mutuality, but mutuality could be found where there was extrinsic evidence
‘It is therefore clear that there must be a definite agreement between the makers of the two wills; that that must be established by evidence; that the fact that there are mutual wills to the same effect is a relevant circumstance to be taken into account, although not enough of itself; and that the whole of the evidence must be looked at.
The effect of a mutual will is to bind together the will of one person with another – in the same way that a contract entered into by a person before their death needs to be seen as a prior commitment to the testamentary disposition.
Effectively, this would mean (in this case) that whatever the wife inherited from the husband could not be freely disposed of by her will – that she could not change her wishes. Had she inherited or earned money subsequent to that will, then that money might have been disposed of, free of the condition of the mutual will.
Having seen a widow who wanted to make changes to her will for taxation purposes, being bound by an earlier mutual will, I know that it is a significant hindrance to the freedom of testamentary expression to limit a couple in this way – it takes no account of how circumstances change – and as change is a constant in itself, it means a kind of testamentary prison. She professed to have no idea that this was the effect of the will – and indicated her late husband would not have wanted her to be so bound.
I doubt that there will be many who read this – just as as there are correspondingly large numbers of people who happily ask to make a joint will for a couple, without knowing what they ask for. But if there is a person who has made a joint will (and the other joint testator is still alive and capable of making a will), it would be worthwhile to check with both of them that they realise the significant impact of any agreement – especially one that is written into the body of the will, or in a written form alongside the will, and what its effect is, looking to the future.
I am aware that the imposition of mutuality may seem attractive at first blush – particularly amongst those who have a culture or history of marital obedience. But it is short-sighted of a legal professional to reach for a mutual will precedent without ensuring there are very clear attendance notes and explanatory letters explaining the effect and restrictions of mutuality. This is what professionals are for – to give perspective and experience to the task of framing a person’s wishes. Other solutions, aside from mutual wills, are potentially preferable to this, for all concerned.