EWHC rejects mutual will claim, allowing proprietary estoppel

The England and Wales High Court (EWHC) has rejected a will challenge made by two brothers on the basis of mutual wills allegedly made by their parents. However, it allowed the claim on the alternative ground of proprietary estoppel, as reported by STEP.

The challenge was based on the contention that their parents had made mutual wills in 2000, which their father, who had passed away, later altered in 2015. In the amended will, he left his share in the family business to a different son, Philip.

The claimants argued that their parents had originally agreed to split the family business equally among the three siblings, including Philip. However, they couldn’t produce the executed 2000 will to substantiate this claim.

The defendant, Philip, did not dispute the existence of the 2000 will but argued that it was not a mutual will, and their father was not bound by any agreement to keep his will unchanged.

The EWHC observed that there was no documented evidence of such an agreement and very little evidence of discussions between the parents regarding their testamentary intentions. While the mother had spoken to a family member about her and the deceased’s desire for the business to be inherited by their children, the court found this insufficient to prove mutual wills.

Furthermore, the family’s solicitor’s files did not support the claim for mutual wills. The solicitor acknowledged that he hadn’t inquired about the intention to create mutual wills, as there were no indications to suggest this.

The court noted that the deceased was considered a loyal person who upheld his promises, which worked against the case for mutual wills, as these wills typically involve an agreement that the survivor’s will cannot be altered.

Consequently, the EWHC rejected the claimants’ argument about mutual wills. However, it allowed their claim to a one-third share of the parents’ partnership and company assets (excluding personal assets) on the basis of proprietary estoppel. This case is known as Winter v Winter, 2023 EWHC 2393 Ch.

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