Law Report: Mutual wills are not binding without clear agreement

LAW REPORT v 9 May 1997

Goodchild v Goodchild; Court of Appeal (Lord Justice Leggatt, Lord Justice Morritt and Lord Justice Phillips) 2 May 1997

In the absence of evidence of a clear agreement between testators to be bound not to change their intentions after the death of the first testator, wills made simultaneously and in similar terms were not mutual wills. The survivor was accordingly entitled to dispose of his estate as he wished.

The Court of Appeal dismissed the defendant's appeal against the award of pounds 185,000 to the first plaintiff under the Inheritance (Provision for Family and Dependants) Act 1975, and the plaintiffs' cross-appeal against the judge's finding that the wills of the first plaintiff's deceased parents were not mutual wills binding upon his father after his mother's death.

The first plaintiff was the son of the testator and his first wife. They made simultaneous wills in similar form in favour of the first plaintiff. The first wife died in April 1991, and in August 1992 the testator married again, and made a new will in favour of his second wife, the defendant. He died a few months later.

J.H.G. Sunnocks (Poole & Co, Yeovil) for the defendant; Jeremy Gordon (Porter Dodson, Yeovil) for the plaintiffs.

Lord Justice Leggatt said that it had been submitted for the plaintiff that it was sufficient for wills to be mutual to show a common understanding between the two testators at the time of the wills. If neither testator had given notice to the other that they had withdrawn from the understanding, the obligation became a legal one upon the death of the first testator.

However, for the doctrine of mutual wills to apply, there must be a contract at law: see In re Dale [1994] Ch 31.

A key feature of mutual wills was the irrevocability of the mutual intentions. Not only must they be binding when made, but the testators must have undertaken, and so must be bound, not to change their intentions after the death of the first testator.

The judge had declined to infer any agreement between the testators in the present case which would prevent the survivor from interfering with the succession. That was a conclusion to which he was entitled to come on the evidence. The plaintiffs' appeal would, accordingly, be dismissed.

On the cross-appeal it had been argued that no provision should have been made for the first plaintiff under the 1975 Act. It had been further argued that the judgment below showed confusion between the principles of family provision and those relating to mutual wills.

His Lordship disagreed fundamentally. When the court found that the testator had been guilty in all the circumstances of a breach of moral obligation owed by a father to his child, leaving the child in straitened financial circumstances, the court must ensure that adequate provision was made for the child out of the estate, having regard to his need for maintenance and support: see Bosch v Perpetual Trustee Co [1938] AC 463.

There was, in the present case, the plainest possible basis for concluding that, the wife's understanding of the effect of the will she had made was such as to impose upon the husband a moral obligation, once the first plaintiff's need for reasonable financial provision was established, to devote to him so much of her estate as would have come to him had there been mutual wills.

The appraisal of all the circumstances was essentially for the trial judge. He had properly directed himself, and had not been shown to have erred in principle, or even to have reached a conclusion that was surprising or untoward. The sum awarded to the first plaintiff could not be challenged.

His Lordship reiterated the comments in In re Coventry [1980] 1 Ch 461 about the undesirability of dissipating estates of modest size by pursuing appeals against sensible judgments at first instance. The judgment in the present case was not only sensible: it was unimpeachable. The appeal and the cross-appeal would be dismissed.

Kate O'Hanlon, Barrister