Mutual Will - PA1

Mutual Will is dated 27/6/2008
Spouse died 2009
A second Will is dated 11/02/2022

As the deceased has made a mutual Will, am I right in treating the original Will as the Will to prove with the second Will as a codicil in the PA1

(reason we are doing a PA1 is the executor on the new Will have renounced since the mutual Will was discovered)

Do i need to include any statements with the PA1 with respect to the mutual Will

Thank you for your assistance.

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.

So do I PA1 with second will and not prove 1st Will

Mrs Rachel Stafford

Solicitor

Rachel Stafford Legal Services
Wills, trusts and private client advice specialist

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I believe so, yes.

But bear in mind that the administrator(s) will continue to be bound by the mutual will

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

Thank you that really helpful.

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?

The doctrine of mutual wills is based on the promise, and not any commonality of the intended beneficiaries.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

Thank you Paul, that’s really helpful.

Our matter is part of a dispute which has been resolved between the executors and beneficiaries of both Wills.