Mutual Wills: Clear Evidence Needed for Binding Agreement Not to Revoke a Will

A mutual will is an agreement between individuals to not revoke or alter their wills, except as provided for in the agreement. Evidence of an agreement not to revoke a will must be clear and unequivocal. The disappointed beneficiaries in Brynelsen Estate (Official Administrator of) v. Verdeck, 2002 BCCA 187 found out the hard way that there is a legal distinction between an “honourable engagement” and a binding, enforceable mutual will agreement.

Legal requirements for mutual wills

Two individuals executing mirror wills at the same time and on similar terms—as the spouses in Brynelsen Estate did—is not on its own sufficient to establish a mutual wills agreement. The requirements for mutual wills are:

• there must be an agreement between the individuals who made the wills, which amounts to a contract at law;
• the agreement must be proven by clear and satisfactory evidence; and
• it must include an agreement not to revoke wills.

Where the mutual will requirements are met, the survivor of the parties to the agreement will not be permitted to defeat the agreement by revoking or changing his or her will after the death of the other. If the survivor later revokes or alters his or her will, equity provides a remedy in the form of a constructive trust on the survivor’s estate for the benefit of those who were intended to benefit under the mutual will.

Mutual wills claim in Brynelsen Estate

James and Holly married, executing wills within four months of their wedding. Each brought assets of their own into the marriage. James had two daughters from his first marriage; Holly had no children. James and Holly executed mirror wills at the same time and on similar terms, giving all to the surviving spouse, with James’ daughters being the ultimate beneficiaries in equal shares of the entirety of the estates. A year later, James died. After his death, Holly executed another will, which was faithful to the agreement, devising all of her property to James’ daughters. A year later, Holly married John. Holly’s lawyers warned her that her marriage to John revoked her existing will (note that the law in BC on revocation of a will by marriage has since changed). Despite the warning, Holly did not prepare a new will. When John died a few years later, his estate went to Holly. Ten years later, Holly died. As her last known will had been revoked by her marriage to John, she died without a valid will. The rules of intestacy provided that her estate was to devolve to her next of kin: six cousins to whom she was not close. James’ daughters sued, arguing that their father and stepmother had a mutual agreement as to the disposal of their estates, to which each was legally bound, and which equity should enforce. The trial judge agreed, declaring that Holly’s estate was held in trust for her stepdaughters.

Mutual wills agreement must be certain to be enforceable

The BC Court of Appeal overturned the lower court’s ruling, finding that an agreement enforceable in equity requires more than an “engagement of honour.” Over the years, Holly had become close to James’ children and regarded them as “her girls” and it was clear that Holly felt morally obligated to preserve James’ estate for her stepdaughters. For example, Holly mentioned her agreement with James to her good friend and to her housekeeper. She also kept securities she inherited from James’ estate in an envelope with a handwritten note that the contents were to go to James’ daughters.  However, that evidence was insufficient to establish a legally binding obligation. The critical time in this case is the time of the making of the wills when James and Holly had been married but a few months. The evidence simply did not warrant a conclusion that Holly was close to her stepdaughters whom she had met but a few months before. Consider this:

• At that point in time, what if James had been asked whether he was binding himself to leave not only what he might inherit from Holly but also his own estate to his daughters from his first marriage no matter what happened? Was he depriving himself, if he married yet again and had children by a third wife of the means of providing for them? 
• What if Holly had been asked, “What if James dies and you marry again – are you committing yourself to leaving nothing to your next husband or his children, of whom you might become fond, or, to put it another way, to leave anything a third husband might leave to you or give to you to James’ daughters?”

To the Court’s mind the answer each would have given to these questions is “no”. For them to have given any other answer would have been irrational. The Court’s rejection of the stepdaughters’ claim resulted in Holly’s distant cousins inheriting her estate.

Take home point on proving mutual wills

For a mutual will agreement to be enforceable in equity, an expressed sense of moral obligation or the suggestion of an intention to be bound is not enough. BC law requires clear and unequivocal evidence of an agreement not to revoke a will.