I have a matter where a Wife wishes to revoke the mutual Will she made with her Husband several years ago. Husband is still alive but lacks capacity, can she revoke by serving notice on husband, even though he lacks capacity?
Glanvilles Damant Legal Services
Technically, yes. I think it would be pertinent to obtain an opinion letter for the file if positive.
Courts still consider mutual wills binding even if its obvious one or other parties attempted to revoke by making a new will.
Legg and others v Burton and others 
I am troubled by this. If the wife dies, having revoked her mutual will, where the surviving husband is not in a position to change his, he is prejudiced. If the husband dies, not having been able to change his, the wife having already changed hers, the position is no different from if she only changed hers after his death. The relevance of notice to the survivor is that it means the survivor is not prejudiced (Stone v Hoskins), but it is not all obvious to me that notice to someone lacking capacity is good for that purpose. I think you need to warn your client that there is a risk of a challenge to her will (or rather to her estate) if she proceeds, unless, perhaps, she instigates a statutory will for her husband.
New Square Chambers
I have, in the back of my mind, that mutual wills can only be revoked where the parties to the arrangement both have the ability to make new wills.
If so, then upon one party losing testamentary capacity the agreement cannot necessarily be undone. It may be that the making of a statutory will on behalf of the uncapacious party will nullify the agreement. However, at what point would that become effective - would this only be once the Court of Protection has sealed the new will?
The situation is probably sufficiently unusual that the guidance of Chancery counsel might be recommended.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Presumably the rationale of one party serving notice on the other party of effectively an intention to revoke or change a “mutual will” is to then relieve the receiving (and of course the serving) person from the agreement not to revoke their will.
In other words, X has said he does not wish to any longer to be bound by the agreement with Y re their mutual wills which then allows or gives the option to Y to also change their will if they so chose.
Thus, if Y in the above example lacks capacity then Y, even having received notice, is unable to change their will.
I’m unaware of any authority in such circumstances but it would (at least to a layman) seem grossly unfair to allow X to resile from their agreement. On the other hand, why should X be bound just because of Y’s subsequent unfortunate change of circumstances.
I assume nothing in the original agreement provided for such circumstances.
Does the length of time between original agreement and wills execution and the subsequent serving of notice have any relevance ie the longer this length of time the more likely X could revoke successfully.
Another reason why mutual wills are a disaster.
Thank you all very much for your thoughts on this.
I understand that the extent to which parties are bound will depend on the terms of the agreement between them …the clause does not ask for notice to be served but the clause states that the testatrix has agreed not to amend or revoke the Will after the death of husband if it is then unamended and unrevoked.
Is the need to serve notice on the other party so intrinsic to a mutual Will that it a clause doesn’t need to explicitly state that notice is required?
Glanvilles Damant Legal Services
An interesting situation Kate.
Could the W. consider copying the notice - that she is no longer treating wills as mutual wills - she sends to H. to the beneficiary she is removing from her Will?
That way if in the future a disputearises the removed benficiary would have been aware from that point in time and could have taken steps to seek a CoP statutory will.
I appreciate that W. might prefer not to copy her notice to them but if she does not do so she would likely be at increased risk of challenge to her new will. Also they would be likely to be notified in any event if W. instead herself launched a statutory will application to CoP for H.
All the best,
While I can completely understand the qualms in this situation generally, if the express terms of this Will only prevent revocation after the death of the husband, I wouldn’t have thought this could be interpreted to mean “death of loss of capacity”. That would be reading in words which are patently not there.
Osborne Clarke LLP