My firm has been instructed by a lady to update her Will. Since the instruction was taken we have spotted that her existing Will is a mutual Will and that her husband died very recently. The existing Will contains various pecuniary legacies and then residue to her daughter. She wishes to add a few more pecuniary legacies. I am wondering what our duties are…do we need to decline to act because the existing Will cannot be revoked or can we act as long as we warn the client of the fact that she is in breach.
It is the daughter who could enforce the trust and refuse to pay the extra legacies, could we be open to a claim by the disappointed beneficiaries? Could involving the daughter assist?
I don’t see any reason why she could not make a codicil to her Will giving the additional legacies and stating that it is her solemn wish that her daughter will not object. Hopefully her daughter will accept the position particularly if the legacies are not going to reduce residue for her to any great extent. Yours is an example of where mutual wills Are not always the best solution.
The case of Legg and others v Burton and others [2017] EWHC 2088 (Ch) may inform.
Providing the will really is a mutual will with 'not to revoke ’ clause I believe the courts would find in favour of the beneficiary who decided to sue. The courts usually hold the estate to be held on a constructive trust after the first death. On that first death the agreement becomes binding on the survivor.
In the case above, wills made after the mutual will were deemed ineffective.