McLean v McLean – The High Bar Needed To Establish Mutual Wills

A recent case in the High Court brings in the question of trust when creating a mirror Will with a spouse. Following the death of her husband of 45 years, Maureen Mclean updated her Will thereby disinheriting her three stepchildren. This negated a mirror Will made only 5 years prior by the couple, based on a trust that it would not be altered in the event either party passed away first.

It’s common for couples and / or spouses to create what is known as ‘mirror Wills’ which is where both Wills are executes on very similar terms. Often the couple will, in the first instance leave their estate to each-other, and if the other has already passed away by this point the estate is left to their children. These Wills are often made on the understanding between the survivor will not change their Will after the other has passed away.

However, this arrangement relies on the couple’s trust in each other not to change their Will in future. Given that a mirror Will can be changed at any time, some people wish to ensure in a more concrete way that their Will is protected for the beneficiaries they have chosen.

One way for couples to ensure that their spouse or partner’s Will can’t be changed after the death of the first testator is by creating ‘Mutual Wills’. Use of doctrine of Mutual Wills is uncommon in practice, due to their lack of flexibility but, when put in place are an incredibly powerful tool.

Background of Mclean v Mclean [2023] EWHC 1863 

Reginald Mclean and his first wife had three children together. Reginald had later re-married and was with his second wife, Maureen for 45 years. They had one child together, Brett.

Reginald and Maureen executed mirror Wills in June 2017 which left their estates to each other in the first instance the residuary estate of the survivor equally between all their children (from Reginald’s first marriage and to Maureen). Reginald passed away in March 2019. In August 2019, Maureen executed a new Will which revoked her 2017 Will and cut out her three stepchildren so her entire estate would be left to her son, Brett. Maureen died within a month of the 2019 Will being executed.

Was updating the Will allowed?

The key issue was whether the doctrine of mutual Wills applied, and therefore prevented the second spouse from revoking the purported mutual Will. If the doctrine could be established, then the previous (mutual) Will would stand, rather than a more recent Will that had been executed since the first spouse passed away.

Facts considered by the court:

• In relation to the 2017 Wills, Maureen had stated in a meeting with the drafting solicitors that she would not change her Will or disinherit her stepchildren, in the event that Reginald passed away before her. Reginald was advised by the solicitor that there was no guarantee that Maureen would not later change their Will, and the issue of Mutual Wills was not discussed expressly. The couple did, however, state that they trusted each other implicitly [not to change their Wills].
  
  
• Reginald and Maureen wrote a joint letter to their children explaining the existence of the 2017 Wills, stating that each child would ‘get something to enjoy’, that they were ‘very happy’ with their Will contents and that they ‘wouldn’t feel confident to change anything now’ due to their deteriorating health.

The claim was first heard in the Central London County Court, where the claimants argued that the implicit trust that Reginald had in Maureen not changing her Will, combined with the joint letter to the children established a mutual agreement that neither would revoke their Will.

Summary

The court found that the couple had not entered a legally binding agreement not to revoke. A moral obligation and mutual intention was not enough.

The court also considered whether an estoppel argument could succeed, where the necessary binding mutual agreement had not been demonstrated to establish the doctrine of mutual Wills. It was argued that Maureen made a representation, that she intended to be legally binding, that Reginald acted on to his detriment (by executing the 2017 Will).

The judge also found that a proprietary estoppel could not have arisen in these circumstances.

The claimants appealed to the EWHC. Judge Mann found the following:

• On the mutual Wills point, Judge Mann confirmed ‘What is required to establish mutual Wills is a clear agreement, whether strictly contractual or not. Expectation, or trust, is not enough'.
  
  
• On the estoppel point, Judge Mann ruled that whilst in principle an estoppel might sometimes operate in this situation, in this case estoppel was not founded on the facts.

This case highlighted the fact that, to establish the doctrine of mutual Wills, agreement and irrevocably are key. The case highlighted the fact that the evidence must be clear and unequivocal.