Mutual Wills Claim Fails For Lacks Of Evidence

• Published date: 27 October 2023
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Michelmores
• Author: Emma Bryson

The High Court has recently rejected a mutual wills claim, in the case of Winter & Anor v Winter [2023] illustrating just how difficult these types of claims can be, especially where there is little documentary evidence of any such agreement by the testators to bind one another.

Mutual wills are created when two people make a binding agreement to make their wills in a particular form and agree not to revoke them or (depending on the terms of their agreement) change them without giving the other the opportunity to do the same. Upon the death of the first to die, the survivor is bound to give effect to their agreement.

Many families in the UK have step parents, second marriages, and children from different relationships. Sometimes therefore, in circumstances where a testator has remarried, they will wish to benefit their new spouse in their will, but only on the understanding that when their spouse dies, those assets they received will then pass to the testator's biological children (rather than their new spouse being able to decide who to pass them on to).

In the case of Winter & Anor v Winter [2023] Richard and Adrian Winter brought a claim in relation to their father Albert's estate. Albert died in 2017 leaving a will made in 2015, which gifted nearly all his estate, including his shares in the family business, to a third son, Philip (the defendant).

The claimants argued that Albert and their mother Brenda (who had passed away in 2001), made mutual wills back in 2000 leaving their shares in the family business equally among the three...