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The case of Goodchild v Goodchild (Chd Times December 1995, and CA Times 12 May 1997) confirms, once again, the need for those who have made wills to re-consider them in the light of changes in the law.
Couples often make wills in substantially similar terms. They agree to leave their property to each other, but on the second death, the property is to go to their children (or otherwise as agreed). This case suggests that such wills might well be reconsidered. If unchanged, such wills may just create obligations as between the partners which are neither wanted nor expected.
After the first death, the surviving partner may have many years to live, and have to cope with unanticipated and substantial changes. He or she may re-marry, which will revoke the existing will, or the situation can change in any number of ways. In any event, the survivor will usually need to be free to alter his or her own will, and to deal with his or her property according to circumstances.
The law recognises sometimes that wills are made which create certain expectations in the minds of potential beneficiaries. This can include an expectation that the person making a will will not change it. Sometimes wills are made by two people, each on the basis that th others will will not be changed. Once such mutual wills have been executed, and those promises made, the wills can become irrevocable. It had always been thought that such expectations could only arise if an explicit promise is made not to revoke a will.
This necessary freedom might be lost where husband and wife have made such wills. The wills may not be strictly mutual wills, but the law may still suggest that they impose trusts on the survivor. There is a small risk that the survivor may be left unable to amend his or will as freely as they need in order to allow for changes in their circumstances.
This small risk can be removed by an explicit provision that the wills are not intended to be mutual wills. We do not suggest that such wills should all be amended for this purpose only, but it can be one more thing to do when the will is amended.
See also In re the Estate of Monica Dale (Deceased), Proctor v Dale (Times 16 Feb 1993), which stated that where there are in fact mutual wills, there is no necessity for the second testator to take any particular benefit under the arrangement for him to have become bound by the mutuality on the first death.
A further complication now arises because of the Contract (Rights of Third Parties) Act 1999. Here a third party can take the benefit of a right given to them by a contract. A will is certainly not a contract, but an agreement to enter into mutual wills might be.
It is worth noting that this issue is not merely a matter of idle speculation. It is becoming clear that this area is becoming an area in which the issues are still being litigated, and developed.
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