Constructive Trust

I have a situation whereby a married couple entered into mutual Wills with an agreement not to change their Wills after the first death.

The survivor then altered his Will and destroyed the Mutual Will, however, I have a copy.

The Executor of the Estate accepts that estate will be distributed in accordance with the mutual Will.

Do we apply for the Grant of Probate for the latest Will and vary the estate back to the disposal as in the mutual Will? I have a feeling if we do not prove the mutual Will copy that the beneficiaries of the mutual Will will not allow Probate to be granted and enter a caveat.

Has anyone had this situation and what is the way forward?

The second Will is valid isn’t it, it is just that the constructive trust arises on the death of the second of their joint estates but we still apply for the Grant under the second Will.


Lisa Nurse
Graham and Rosen

As no one else appears to have commented, I would venture the following.

I agree that the later will is valid [subject to normal rules re execution etc] so should be proved in order to access the estate assets. However, when considering distribution the PR(s) should take into account any constructive trusts arising from the “mutual” wills. I suspect that the precise wording of both wills may be relevant in deciding what part(s) of the estate are caught by the constructive trust, and what should pass under the later will.

If IHT is relevant, I think the effect of the mutual wills can/should be mentioned in the initial forms, and any tax payable calculated accordingly. If so, I see no reason to “vary” the estate.

Kevin Mullen