The Binding Contract Requirement: The County Court Considers The Test For Mutual Wills

Published date27 September 2022
Subject MatterFamily and Matrimonial, Wills/ Intestacy/ Estate Planning
Law FirmHerbert Smith Freehills
AuthorMr Hussein Mithani and Richard Norridge

The County Court has recently examined the law on mutual wills as well as providing a brief reminder of the law of testamentary capacity and undue influence. This decision provides a helpful summary of the law on mutual wills and explains the requirements and formalities in order to create a mutual will.

Simply put, mutual wills are wills made by two or more persons where there is an agreement between those persons that the wills are irrevocable and have the intention of benefitting a third party. As a result of the mutual will, the relevant property is held for the third party on an implied trust. If the survivor revokes or changes their will, then an equitable remedy can be sought to ensure the terms of the original will are adhered to and the relevant property continues to be held for the third party.

In Ian Paul McLean and Ors v Brett McLean, H10CL283 (unreported), it was held that the two wills executed by the Claimants' father and stepmother in 2017 were not mutual wills and consequently the Court refused to grant the declaration that the estate of the deceased was to be held on trust for the Claimants. In making his decision, the Recorder considered that a binding contractual agreement was required for the doctrine of mutual wills to apply, in particular the Recorder noted that proprietary estoppel would not be sufficient to engage the doctrine. The Recorder also held that the 2017 wills were validly made and were not void for lack of testamentary capacity or undue influence.

Hussein Mithani, an associate in our disputes and private wealth team, considers the decision in further detail below.


The Claimants were siblings whose father is Reginald McLean ("Reginald") and whose stepmother is Maureen McLean ("Maureen"). The Defendant was the Claimants' half-brother, his father is Reginald and his biological mother is Maureen.

The claim concerned the 2017 wills of Reginald and Maureen (the "2017 Wills"). In the 2017 Wills Reginald and Maureen left their estates to each other as survivors and the residuary estate of the surviving spouse to the Claimants and the Defendant in equal shares. Then, after Reginald passed away in 2019, Maureen revoked her 2017 Will and executed a new will which left the entire estate to the Defendant (the "2019 Will"). Maureen shortly passed away after signing the 2019 Will.

The Claimants sought to argue that the 2017 Wills were mutual wills and brought a claim seeking a declaration that the estate of Maureen should...

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