Explaining the Mutual Wills Doctrine

Abstract

Although the mutual wills doctrine has been part of English law since the 18th century, it remains difficult precisely to define its operation, the legal principles involved, and its underlying rationale(s). These difficulties have caused many to doubt the usefulness and coherency of the doctrine. Recently, the Law Commission announced its plan commence a review of the law concerning wills in late 2015, with one of the four key areas to be reviewed being mutual wills. The review is said to ‘aim to reduce the likelihood of wills being challenged after death, and the incidence of litigation. Such litigation is expensive, can divide families and is a cause of great stress for the bereaved.’ This is reminiscent of Mummery LJ’s comments in Olins v Walters that the doctrine ‘continues to be a source of contention for the families of those who have invoked it. The likelihood is that in future even fewer people will opt for such an arrangement and even more will be warned against the risks involved.’ It is therefore a real possibility that the Law Commission might suggest abolishing the mutual wills doctrine completely. This chapter proposes a new way of understanding the mutual wills doctrine which is consistent with orthodox principles. It distinguishes between what will be labelled ‘qualified interest’ and ‘absolute interest’ situations, each applying to a different type of mutual wills agreement. From this renewed understanding, it will be seen that the doctrine is underpinned by two distinct rationales which also form the basis of equity’s intervention in other areas. This indicates that the appropriate way of understanding the mutual wills doctrine is not to treat it in isolation, but in view of its relationship with other doctrines which give rise to constructive trusts such as the doctrine in Rochefoucauld v Boustead, secret trusts, and proprietary estoppel.