I’ve never heard of this analysis (which isn’t to say it’s wrong!)
I’ve always understood that a later will revoked a mutual will, but the legacies of the mutual will remain binding on the PRs by way of contract and constructive trust.
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I agree with Andrew! A mutual will agreement does not in fact prevent either party from revoking the will, but is enforced by way of constructive trust over the estate to conform to the will executed pursuant to the agreement.
Alexander Learmonth KC
Can such a constructive trust bite if H&W TIC’s of residence, both with children only from prior relationships agree to leave their respective halves in trust for sale with residue (naught else in estate) to their own children and rather than give a life interest to the survivor rely on the survivor’s right to reside in the home for the rest of their life? (Accepting of course that evidence of mutual intent would need to be in the will itself or the will file)
Are solicitors in this situation under a duty to reveal the former mutual Will to all beneficiaries, and to advise the executors of the second Will to not distribute to the beneficiaries under the second Will?
Accepting of course that evidence of mutual intent would need to be in the will itself or the will file
I would always recommend hat the declaratin of mutuality be included within the wills.
I have seen a number of instances where mutual wills have been allegedly effceted by a separate joint declration which, for whatever reason, appears to have disappeared by the time of the second death, enabling the survivor’s estate to go elsewhere than as provided by the (otherwise) mutual wills.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I think the essence of what I was trying to get at in my earlier post (apologies for poorly drafting) is whether where neither spouse leaves anything to the other, and the beneficiaries of each are different, it can still actually be a mutual will, even if expressed to be so, because there are no common provision across the two wills and no beneficially joint assets involved?