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MUTUAL WILLS
Joint will : One instrument that serves as the will of two or
more people. The instrument is probated(proved and allowed by the
court) each time a contestator dies. Generally, it is not good
practice todraw joint wills; the parties may separate, one of them,
rather than both, may have custody of the willand the other may not
know its whereabouts; one of them may destroy the will without the
other’sknowledge or consent. It is better to draw a separate will
for each testator, even if the wills areidentical.
Mutual wills : (Also called Reciprocal Wills) are separate,
identical wills for each testator containingreciprocal provisions
accompanied by an agreement that neither testator will change his
will after thedeath of the other.
Mutual will – one of the testamentary documents made
respectively by two persons giving each othersimilar rights in each
other’s property. It implies the separate wills executed on t he
same daycontaining similar provisions. Two persons may agree to
make mutual wills which remain revocableduring their joint lives by
either of them with notice to the others the peculiar
characteristic of this kind
of wills is that they become revocable after the death of one of
them, if the survivor takes advantageof the provisions made by the
other.
This was illustrated in Hiroto Watanabe v Law Yen Yen :
(1) To prove mutual wills, it must be established that there was
an Irrevocable agreement to distribute the estates in a particular
way at the time of the
making of the mutual wills. The fact that the wills were
executed at the same time and have the same terms is a
relevant consideration to prove there was such an agreement but
it is by no meansconclusive.
Agreement may be by oral or in writing, be incorporated in the
will or proved by
extraneous evidence and must be established by clear and
satisfactory evidence onthe balance of probabilities.
What is decisive at the end of the day – that there was an
agreement by the testatorsfor the wills to be irrevocable and to
remain unaltered – a common intention,expectation or desire will
not suffice. It may therefore, be insufficient for a husbandand
wife to merely have corresponding wills or mirror wills as they may
carry noobligation to be revoked.
(2) Detailed nature of the 2002 Wills and especially the
contents showed that in the event thedeceased predeceased the
Plaintiff, her two children would be provided for and that was
thedeceased’s main concern and she had clearly intended the will to
be irrevocable. This was
supported by the evidence of the P of the deceased had expressly
stated to the witnesses tothe will that there was a promise by both
the deceased and the P to never change the wills.Therefore, there
was no doubt that there was an agreement between the P and the
deceasedthat the terms of the wills would be irrevocable.
(3) Deceased broke promise without giving notice to the P. The
fact that the deceased’s last willof 2007 talked about the
possibility of the P transferring his half share to the deceased –
seemed to be all pre-planned and well-executed. The plan was to get
the P to transfer hisshare of the properties and then for the
deceased to revoke the will and deprive the P of hisinterest in the
properties under the mutual wills.
(4) Trite law – promise made in mutual wills cannot be lightly
disregarded. It has long been
established that when one act s on the faith of an agreement to
make mutual wills, equitableobligations will arise to prevent the
offending party from acting unfairly. Considering the
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jurisprudence regarding the doctrine of mutual wills, it is
trite law that the court of equity willnot permit any transfer of
the property which is inconsistent with a legally binding
obligation. Itis also trite that equity attaches to the principal
of irrevocability in the doctrine of mutual willswhich comes into
operation when the first to die does so without revoking his or her
will. Theprinciples of equity are equally applicable where the
survivor had acted to his detriment or has
suffered serious prejudice when acting in full faith and
reliance on the agreement orunderstanding reached between the
testators at the time of the execution of the mutual wills.This
will especially apparent in a situation where the first to die had
acted unilaterally andwithout notice or worse still, had acted in a
secret or clandestine fashion in revoking the willentered into on
an irrevocable basis. This was precisely the case in the instant
action whenthe deceased acted unconscionably in revoking her 2002
will secretly to his detriment andprejudice to the Plaintiff.
(5) Here, serious prejudice to the Plaintiff. It would be unjust
and unconscionable in thecircumstances to permit the deceased and
now her estate and her children to profit from herbreach to his
detriment. Held: D to hold the properties on trust for the P in
accordance withthe terms of the 2002 will.
