The recent case of Charles v Fraser has again highlighted the binding effect of carefully drafted mutual Wills. In ruling that the defendant, Ms Fraser, had to repay the £380,000 she had inherited from her neighbour, Ms Willson, the High Court stated that the mutual Wills that Ms Willson and her sister had executed in 1991 remained a binding agreement and that as such, Ms Willson's estate should pass under the terms of those Wills and not under the terms of the later Will that she drafted after the death of her sister.

Mutual Wills, if drafted correctly, serve to ensure that upon the death of either testator, the surviving testator's estate passes under the terms of the mutual wills to a beneficiary of their choosing. In essence, if effective mutual Wills are created, as soon as one of the testators dies, provided they have neither amended nor revoked their Will, the surviving testator inherits the estate of the deceased and from thereon can no longer change their own Will. Of course, if the deceased testator has either amended or revoked their Will before their death, then the surviving testator is freed from this obligation.

Many couples draft wills that appear identical. Understandably, those who are unfamiliar with the law of succession may be concerned that the ruling in Charles v Fraser could operate to restrict their ability to amend their Will following the death of their spouse or partner. However, there is no need to panic. Very specific wording is required to demonstrate an intention to create a binding mutual Will.

Should you wish to have the wording of your Will reviewed by our Private Client Practice, or indeed if you do not have a valid Will in place, please contact Sarah Bridge.

16 August 2010