We acted for a married couple who made Mutual Wills in 2004. The wife has now died. The husband wants the original Wills , as he wishes to change the terms of his Will. Our problem is that because they are Mutual Wills, they are contractual, and that contract remains after death. Because of the nature of a Mutual Will, the husband is precluded from changing it. We have refused to release the originals to him on the basis that he has told us that he wishes to destroy it, and because we owe his deceased wife a duty of care. Are we correct to not release the original Wills to him?
Youâre advisors, not participants. I donât agree that you owe the deceased wife any duty of care (unless there is something in the terms of your original retainer more than you have put in your posting). Youâre not in a position to disclose the terms of the Wills to the beneficiaries who are now to be excluded. I believe you must leave the responsibility for the breach (of the Trust, not, I think, a contract) on the shoulders of the potentially breaching husband and release the Wills.
Of course thereâs no reason why you shouldnât retain a copy of the Will â oh, yes there is, the EU-derived GDPR prevents you retaining it.
I should think he has an absolute right to his own will.
Usual rules apply to her will - I assume he is sole executor? If he has said he will destroy her will rather than submit it to probate - i.e. commit fraud on the other beneficiaries - you may well be justified in contacting them to tell them but I should see if you can get some regulator buy-in first. Keeping copies would of course keep alive any contractual claims as copies would be virtually as good evidence as the originals.
I am no criminal lawyer but I think Theft Act 1968 s.20 still
applies: a person who dishonestly, with a view to gain for himself
or another or with intent to cause loss to another, destroys ,
defaces or conceals any will or other testamentary
document (inter alia) shall on conviction on indictment be
liable to imprisonment for a term not exceeding seven years.
Therefore, in my opinion, you have every justification in refusing to release either will (except, in the case of the wifeâs
will, to the Probate Registry in connection with an application
for probate). It isnât just a matter of ethics, it is a matter of
whether you might incur criminal liability yourself for assisting
him. I certainly wouldnât release anything until I had resolved
that question beyond any doubt.
Itâs not the wifeâs Will thatâs the problem but the proposed new Will to be made by the husband. The husband doesnât have to take any action under the wifeâs Will unless he is executor, but merely proving her Will isnât going to enable the beneficiaries to enforce his [present]Will, and thatâs where the problem lies. The Original Poster does not say whether the terms agreed between husband and wife are within the face of the Will
Surely the survivor is free, in principle, to execute a new will? The constraint he is under is that, effectively, a constructive trust has arisen over the property that was dealt with mutually under the existing wills. He is therefore unable to dispose of
that on any different terms. But if he wished, say, to appoint a new executor, he can execute a new will.
However, if he has clearly stated that he intends to ignore the constructive trust and dispose of the mutual property on new terms, then you do have a difficulty. His own will is, after all, his property and he is entitled to ask for it. If the SRA code of
conduct doesnât cover the situation is it possible to ask them for guidance?
The survivor can demand his own Will and complete a new one. The mutual Will âtrustâ does not crystallise until his death and he must be warned of the restrictions that apply and the effect this would have on
any new Will. It would certainly be advisable to retain a copy of his Will with that of the wifeâs.
If he is the wifeâs executor, he can demand her Will as well, and again a copy should be kept.
A reminder that no-one should ever make mutual Wills!
Thank you to all of you who are replying. It is actually my colleagueâs file. I became involved when my colleague was on holiday and I spoke to the client and explained about the constructive trust.
Our risk manager has tried the SRA first for guidance but I understand their advice has been very broad and it is not potentially addressing all the issues which is why we posted this query.
In this case, where then survivor has raised suspicion as to whether he will comply with the agreement with the deceased, the person holding the will is in a difficult position. Whilst it has been suggested they have no duty to the beneficiaries if the terms of the mutual agreement are not upheld, acceptance of the will for safekeeping could be interpreted as an assurance to the testator that they will look to ensure the intended gifts are not knowingly subverted. Mindful of the decisions in White v. Jones and Carr-Glyn v Frearsons, I do not think that the existence of such a duty is merely fanciful.
If the widower had merely asked for the wills to be released to him, then that would probably be done with no issue. The problem is that he has set out his intentions, which are effectively to subvert the terms of the agreement. If he had instead held power of attorney over his wifeâs financial affairs and written a cheque, this would not normally be questioned. However, if he said the cheque was to pay for his girlfriendâs new car, this would raise a âred flagâ and payment would usually be refused.
Whilst it might be difficult to refuse to release the widowerâs will to him, even if he is the sole executor of the wifeâs will, in the circumstances he is in a position of conflict with his obligations. I would be inclined to send the wifeâs will to the local Probate Registry with a note of the circumstances, so that they might hold it until such time as an application for a grant might be made. This should at least avoid the possibility of the will just disappearing.
Michael Dew makes a good point about the intention to deprive but, of course, the widower might insist that upon his death the combined estate will pass the same way, just under a newer will. However, until the widower dies, that cannot be properly tested.
I think the problem there Michael is that if H disapplies his wifeâs intention in a new Will, it only happens after he has died so seven years in Nick is not likely to worry him?
H does not commit an offence in trying to âdisapply his wifeâs
intention in a new willâ: the offence is in destroying or
concealing his mutual will (and/or his wifeâs) dishonestly and
with a view to gain for himself or, more likely, loss to someone
else. The way that mutual wills work was summarised by Morritt J
in Re Dale:
âThe doctrine of mutual wills is to the effect that where two individuals have agreed as to the disposal of their property and have executed mutual wills in pursuance of the agreement, on the death of the first (âthe first testatorâ) the property of the survivor (âthe second testatorâ), the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills. The survivor may thereafter alter his will, because a will is inherently revocable, but if he does his personal representatives will take the property subject to the trust.â
It is not H making a new will which would be criminal, it would
be an attempt by him to prevent anyone discovering the existence
of the trust which arose on Wâs death by destroying or concealing
either or both of the mutual wills.
Of course, Hâs actions may only be discovered after his death, if at all, but that could be said about any crime.
However, in my earlier posting I was less concerned about Hâs
liability than the potential liability of the person holding the
wills who released either or both of them to H knowing:
(a) that H had expressly said that he intended to destroy his old will and
(b) that the stated reason for requiring his original will,
that he needs it in order to make a new will, is balderdash. All of us regularly draft wills without seeing the original of the existing will. A copy may be helpful, but would any of us refuse> H copies of the wills?
An interesting exercise in understanding mutual wills. I have one myself. Having given it some thought I am inclined to think that Michaelâs view is particularly attractive although I do not agree that the the implied trust is ârevocableâ. Here goes and I assume that the property concerned is held on joint tenancy basis and that the survivor has, under the settlement, a right to the interest in possession of the property while he lives if the deed were to be viewed as a trust from the outset.The settlement would need to be revocable at the start but share irrevocable held on death. It seems to me that both have agreed to set up a trust/implied trust, at the outset or on the death of the other thus securing the benefit of joint property for either person but not gifting it absolutely to the survivor. It would be much easier if the deed was viewed as a trust deed where the property can be âheldâ for others whereas, viewed as a will demands that ownership is âgifted/transferredâ to a specific person. I say this because both persons stated intention at the outset was not to make a outright gift to the other but to grant only an interest in possession to the survivor as a lieutenant. This arrangement would secure the Deceaseâs property for the intended beneficiaries leaving the survivor to do with his property as he pleases but always mindful to secure the irrevocably held trust property of the deceased person.
On the GDPR point, you can very happily keep a copy of the Will once released. On the basis that a beneficiary may one day sue your firm, you are entitled to keep the information you would need to defend yourself ( GDPR art 6(1)(f) ).
I spoke to ethics on a similar point once (not mutual Wills, but whether we could release estate funds to an executor in circumstances where we had a good reason to think he was going to defraud a beneficiary). On the basis that the estate funds were our clients legal property, ethics said we had no right to deny him receipt of them and we would not be an accessory to any later fraud. However it was suggested that we make E sign a duplicate letter of advice, confirming that we had advised him as to the the correct distribution of the estate. Applying the same principle, if H is a sole executor, Wâs Will is his legal property but you could ask him to confirm in writing that he has received advice from you as to what he can and canât do.
Releasing to the probate registry would be another good work around.