H does not commit an offence in trying to “disapply his wife’s
intention in a new will”: the offence is in destroying or
concealing his mutual will (and/or his wife’s) 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:
“The 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 (“the first testator”) the property of the survivor (“the second testator”), 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.”
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 W’s death by destroying or concealing
either or both of the mutual wills.
Of course, H’s 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 H’s
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?