Mutual Wills

Question 1

What is a mutual will?

Answer 1

A mutual will arises when there has been an agreement between two people to make wills in similar terms to achieve agreed results.

Thus creating a constructive trust

Question 2

Leading case of mutual wills?

Answer 2

Stone v Hoskins 1905

Trust created by the agreement arises when the first person dies.

Until that date each person has freedom to make a new will outside of terms.

Question 3

Two further cases of the principle of mutual wills

Answer 3

Re Dale 1993 - Aim of the principle was to prevent second testator being defrauded

Dufour v Pereira 1769 - legally binding contracting

Question 4

What case established what is required to prove existence of mutual wills

And what are the requirements?

Answer 4

Fry v Densham-Smith 2010

Prior agreement by testaors to make mutual wills

Making of mutual wills pursuant to that agreement

Question 5

Criticism of mutual wills

Answer 5

Second testator may live for many more years after the first dies and have legitimate reasons for changing will to reflect radically different circumstances