The case of Charles and others v Fraser highlights how the courts will often look behind a will to determine the intentions of the deceased.
Two sisters had each made a will in 1991. They had made mutual promises to each other and as part of that had agreed that the will of the survivor would not be altered so as to change those gifts. The surviving sister did, in fact, alter her will in 2003 and the persons who would have been the beneficiaries under the surviving sister’s original will went to court (after her death) to ask the court to give effect to the 1991 will.
Neither of the wills contained any record that they had been made pursuant to an agreement between the sisters but it was apparent from the provisions of the wills that the terms had been carefully discussed and agreed. The court was asked to apply the doctrine of mutual wills.
The court ruled that for the doctrine of mutual wills to apply there had to be what amounted to a contract between the sisters that both wills would be irrevocable and remain unaltered. A common intention, expectation or desire was not enough. The mere execution of mirror or reciprocal wills did not imply any agreement either as to revocation or non-revocation. The agreement had to be established by clear and satisfactory evidence on the balance of probabilities.
In the light of the evidence, there had been an agreement between the sisters at the time they had made their 1991 wills. They had made mutual promises to each other and it was part of those promises that the will of the survivor would not be altered so as to change those gifts.
This case, once again, highlights the importance of proper and qualified legal advice when drafting wills. None of this would have been necessary if the sisters advisers had ascertained their intentions as to revocation, advised as to the effect of making mutual wills and ensured that any agreement they wished to make was clearly and accurately recorded.
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