Mutual, joint or mirror wills?  Be careful what you wish for.

Legg & Anor v Burton & Ors [2017] EWHC 2088 (Ch) (11 August 2017)

Source: Legg & Anor v Burton & Ors [2017] 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 [1981] 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.

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Your will can be ignored, say judges.

Your will can be ignored, say judges – Telegraph.

Actually, it might be phrased (verbatim from the judgment)

Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only

For the judgments in questionm, the Bailii references are:  Ilott v Mitson & Ors [2015] EWCA Civ 797 (27 July 2015) and the previous judgment of Ilott v Mitson & Ors [2011] EWCA Civ 346 (31 March 2011).

The case centres around the unhappy tale of a mother (Melita Jackson) who, being bereaved whilst pregnant, had her only child, a daughter (Mrs Ilott).  Mrs Jackson, died leaving a will that expressly excluded her daughter from benefit, leaving all her estate to animal charities, despite there being no obvious connection or affection for animals or such charities

There is no evidence that the deceased had any connection with the charities, or that, during her lifetime, she had any particular love of, or interest in, either animals or birds.

Mrs Ilott left home whilst a teenager of 17, to live with Mr Ilott, whom she later married.  Mr Ilott and Mrs Ilott have a very low income, below £5000 a year, have five children, and are entitled to state benefits.  They are eligible to buy their home, under the right to buy legislation.  Their schedules of expenses show a very modest standard of living.

Mrs Ilott and her mother were estranged following the departure from the family home.   Although both parties contributed towards the estrangement, three attempts were made at reconciliation, but none was successful.  The trial judge considered that the evidence showed Mrs Jackson having been

unreasonable, capricious and harsh

towards Mrs Ilott by excluding her from the will, but that on the facts of this case, estrangement ought not to affect the size of the amount awarded.

The latest decision concentrates on the factors to which the court should have regard when considering a claim made under the IPFDA and considers in particular the interconnection between the beneficiaries under a will, and the requirements that they might reasonably expect, and the needs of those who are closely connected to the deceased, and the financial provision *for maintenance* that might be appropriate.  In this case, there was no financial need on the part of the beneficiaries of residue – as charities, this was a windfall.  On the other hand, the daughter had substantial need.   The fact that Mrs Ilott did not have the ability to earn much salary or any pension provision was not considered detrimental:  Mrs Ilott contributed towards society, albeit in her capacity as mother to five children

while she may not have made the choices in life that her mother thought were necessary for her to make a success of her life, she has made a success of her life in other ways through being a mother and homemaker. Third, not only may it be difficult to apportion fault here but there may not have been fault on anyone’s part. Estrangement may simply have been the result of Mrs Jackson’s inability to make lasting relationships with anyone, of which there is other evidence. 

The fact that Mrs Ilott was an independent adult with no disabilities who was not financially dependent on the deceased limited the award that would be given to her.

Mrs Jackson’s obligations and responsibilities to the appellant (section 3(1)(d)):

Ms Stevens-Hoare submits that the ordinary family obligation weighs to some extent in her favour under section 3(1)(d) but she accepts as she is bound to do that the fact that Mrs Jackson had no responsibility for her as an adult child living independently weighs against her.

and:

Mrs Jackson’s testamentary wishes:

Ms Stevens-Hoare submits that the judge was wrong to pay such high regard to the deceased’s testamentary wishes. There was no other beneficiary’s needs to which the court had to pay attention. Since the trial judge had found that it was unreasonable to exclude the appellant, there had to be consideration of reasonable provision. Ms Reed submits that DJ Million was correct to have regard to the deceased’s testamentary wishes: see per Oliver J in Re Coventry dec’d [1980] Ch 461 (“An Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases.”).   In my judgment Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only. In my judgment that limitation strikes the balance with the testamentary wishes of the deceased whose estate is used for the purposes of making an award, at least in this case where there is no other claimant apart from the Charities. They have no demonstrated need or expectation.

3 Matters to which court is to have regard in exercising powers under s. 2.

(1)Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.