Winter v Winter [2023] EWHC 2393 (Ch) - Don’t put all your eggs in one basket

Two brothers brought a claim to challenge the will of their father, on the basis that their parents made mutual wills in 2000 and as such, their father was not at liberty to amend his will in 2015 (leaving his share of the family business to his other son) following the death of their mother. 

The claimants did not simply rely on this claim however and in the alternative, they pleaded a proprietary estoppel claim on the basis that both parents had made numerous assurances to the claimants that if they committed their lives to working in the family business, they would leave (at least their share of land and the farming business) to the claimants and the claimants had relied to their detriment on those assurances.

The defendant argued that the 2000 wills were not mutual and that his father was therefore able to make amends to his will. The Court agreed, concluding that there was no documentary evidence that the wills should be mutual and there was no evidence of any discussions regarding their respective testamentary intentions. 

In order to establish a mutual will, there has to be a ‘contract’ between two testators, confirming that the wills are irrevocable and will remain unaltered after the death of the first testator. This is usually evidenced within the solicitor’s file and sometimes, it can even be expressly stated on the will document itself.

In the absence of such a contract or agreement, it can be difficult to retrospectively establish that a will was mutual and should not have been changed. Mr Justice Zacaroli held “the evidence in this case does not get near to satisfying the burden of establishing an agreement that each of their wills would be irrevocable if they survived each other”.

The alternative claim of estoppel in this case however, was successful. In order to be successful with such a claim, the claimants needed to evidence that a promise/assurance was made to them, they relied on that promise and in relying on that promise, it was to their detriment.

The Court accepted that there were numerous assurances from both parents during their lifetime that the claimants would receive an equal share of the land and farming business, along with their other brother) and the claimants relied on that promise to their detriment, as the amended 2015 will did not leave the claimants with a share of the land and farming business). As such, the claimants received 2/3 of the land and business.

The Claimants also pleaded on the basis that a constructive trust applied, however, it was held that during the course of the hearing, this added nothing to the estoppel case.

This case highlights not only the difficulties of establishing mutual wills, particularly in the absence of documentary evidence setting out testator intentions, but also the importance of not putting all of your eggs in one basket and ensuring that alternative claims, if available, are considered and sought throughout the course of a matter.