Equity and the Law of Trusts Chapter 7 § 2

Which of the following is true about mutual wills?

What happens if one party revokes their mutual will?

Can a will be made irrevocable?

Under what circumstances can an action for damages be brought for breach of a covenant or contract not to revoke a will?

In equity, how can a mutual will be enforced if probate will not be granted?

What is the principle that applies when two persons have agreed to make mutual wills and one of them dies?

What is required to establish a trust in the case of mutual wills?

What happens to the survivor of a mutual will if the other party revokes their will?

In what circumstances can a trust come into being in relation to mutual wills?

What property is subject to the trusts in relation to mutual wills?

In what situations would the trust only operate on a portion of the husband's residuary estate in a mutual will?

Mutual Wills and Constructive Trusts

Mutual wills are an agreement between two individuals, often husband and wife, regarding the disposal of their property.
Each party executes a will with similar provisions, either giving the survivor a life interest or an absolute interest.
The agreement may include a term that the wills shall not be revoked, but it is clear that a will cannot be made irrevocable.
Breach of the agreement not to revoke a will can lead to an action for damages or a suit under the Contracts (Rights of Third Parties) Act 1999.
In equity, a mutual will that is not granted probate can be enforced under a trust, as the survivor is implied to promise to uphold the agreement.
Similar principles apply to joint wills, where the survivor is bound by the terms of the will upon the death of the other party.
An agreement not to revoke mutual wills must be proven, as it cannot be implied from the making of the wills themselves.
The agreement loses legal effect if it relates to land, but a constructive trust may still be established for the share of the deceased party's estate.
The trust is not created immediately and can be released by mutual agreement or if one party revokes their will and gives notice to the other.
If the survivor alters their will after the death of the other party, the trust cannot be enforced, and the survivor is no longer bound by the agreement.
A trust can still be established if a party loses the capacity to revoke their will due to senile dementia.
Determining the property subject to the trust can be challenging, as it depends on the terms of the mutual or joint wills.

Test your knowledge on mutual wills and constructive trusts with this quiz. Explore the concept of mutual wills and understand how they are related to constructive trusts.