Mutual Wills, divorce and re-marriage

I have a client who entered into a mutual Will with his then wife a few years ago leaving everything to each other and then to his wife’s son. They then got divorced and he has since remarried. His first wife died a couple of years ago. Is the mutual will still valid despite the divorce and re-marriage?

I am struggling to find anything from researching this scenario but feel that it must have come up before. My client wishes to make a new Will favouring his second wife and children.

Janet Stevenson
Terry Jones Solicitors

s.18 Wills Act 1837 establishes the principle that a will is revoked by marriage, and subsections 2-5 identify the circumstances in which the rule does not apply.

There is no reference to mutual wills within s.18, so I suggest that the general rule applies – a mutual will is revoked by the testator’s marriage.

However, unless the former wife also remarried, her will is likely to have remained valid subject to exclusion of the husband under s.18A Wills Act 1837.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

I recognise that I dealt with the wrong question in my earlier response.

Whilst there can be no doubt the earlier, mutual will was revoked by the client’s marriage, that does not mean the trusts imposed under that will no longer apply.

Unless the divorce effectively revoked the agreement under the mutual wills (and I doubt that it did), the answer is likely to depend upon the order of events - did the former wife die before or after the client’s subsequent marriage?

If she died before, then the trusts imposed by the mutual will agreement probably stand. If she died after the marriage, I believe that the revocation of the client’s will would also cancel and the mutual agreement.

If the son is the sole beneficiary of the trust imposed by the mutual agreement, might he be amenable to formally waiving his rights to enforce that agreement?

I suggest Chancery counsel might be engaged to help navigate the client through the potential hurdles. If not managed correctly, it could become quite messy.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

It sounds like the case of a negligent adviser to me. But, interestingly, I think the negligent adviser was not the Will draftsman but whoever acted on the divorce.

Of course many clients think they can do this sort of thing themself, and it’s not impossible that the client is the author of his own ills.

Until the wife or husband has died either can revoke their respective will. Thus, marriage prior to death of either spouse revokes the will (mutual or not).

If the wife died and subsequently the husband re-married (revoking his mutual will) a constructive trusts arises of the property passed to the husband under the wife’s mutual will ie property inherited does not then fall under husband’s new will.

See Re Green, Linder v Green [1951].

Malcolm Finney

Marriage revokes the Will but not the Trust created by the mutual Wills.

Thank you for the responses, the divorce occurred first (not known yet whether this dealt with the wills), then the re-marriage then the death of the first wife

The trust only arises on the first spouse death but in the present case the husband had remarried thus revoking his will. As a consequence, the trust never arises.

The wife was thus released from her obligation not to revoke.

Is there a breach of contract due to what would seem to be a unilateral act of revocation by the husband?

Malcolm Finney

In the Law Commission’s Consultation Paper on Wills (CP 231), paragraph 12.13 says:

Professor Roger Kerridge states that “there was, until recently, considerable controversy as to when the binding event occurred”, but it is now settled that the constructive trust takes effect from the death of the first testator. No trust therefore arises where the first testator dies having revoked his or her mutual will and the survivor has notice of this revocation (or alteration). The same is true if the first testator dies knowing that the agreement to be bound no longer stands because the other testator had repudiated it.

In view of this, the question arises whether the former wife was aware of the marriage (i.e. the revocation event) and, if not, does her lack of knowledge mean that the imposition of the trust under her will was effective? I am not sure if there has been any reported case dealing with this aspect. I believe there was a case where one of the parties was subject to the jurisdiction of the Court of Protection, and the question was resolved by reference to the fact that the attorney or deputy had knowledge and ability to apply for a statutory will. But, is knowledge an essential element in the repudiation of a mutual will agreement?

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

I don’t know of any authority to support Professor Kerridge’s comment cited by Paul that no trust arises on the first death but only if the surviving spouse had notice of the revocation.

My understanding is that no trust arises where revocation has occurred prior to the first death irrespective of whether the surviving spouse had notice thereof. As per my earlier post, lack of knowledge of the revocation may mean that the survivor was unaware that revocation was possible on her part, but a right to sue for breach of contract arises.

Malcolm Finney

Does “if anyone knows why…should not be married… speak now” and /or the banns constitute notice of the marriage to the world at large?