Liew, YK;
(2016)
Explaining the Mutual Wills Doctrine.
In: Häcker, B and Mitchell, C, (eds.)
Current Issues in Succession Law.
(pp. 99-130).
Hart Publishing: Oxford, UK.
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Abstract
Although English courts have applied the mutual wills doctrine since the 18th century, it remains difficult precisely to define its operation, the legal principles involved, and its underlying rationale(s). These difficulties have caused many to doubt the usefulness and coherence of the doctrine. Recently, the Law Commission announced its plan to review the law concerning wills in late 2015, with one of the four key areas to be reviewed being mutual wills. The review is said to ‘aim to reduce the likelihood of wills being challenged after death, and the incidence of litigation. Such litigation is expensive, can divide families and is a cause of great stress for the bereaved.’ This is reminiscent of Mummery LJ’s comments in Olins v Walters, that the doctrine ‘continues to be a source of contention for the families of those who have invoked it. The likelihood is that in future even fewer people will opt for such an arrangement and even more will be warned against the risks involved.’ These statements suggest that there is a real possibility that a suggestion might be made to abolish the mutual wills doctrine completely. This chapter proposes a new way of understanding the mutual wills doctrine which is consistent with orthodox principles. It distinguishes between what will be labelled ‘qualified interest’ and ‘absolute interest’ situations, each applying to a different type of mutual wills agreement. From this renewed understanding, it will be seen that the doctrine is underpinned by two distinct rationales, which also form the basis of Equity’s intervention in other areas. This indicates that the best way to understand the mutual wills doctrine is not to treat it in isolation, but to pay proper regard to its commonalities with other doctrines which give rise to constructive trusts such as the doctrine in Rochefoucauld v Boustead, secret trusts, and proprietary estoppel.
| Type: | Book chapter |
|---|---|
| Title: | Explaining the Mutual Wills Doctrine |
| ISBN-13: | 9781782256274 |
| Open access status: | An open access version is available from UCL Discovery |
| DOI: | 10.5040/9781782256304 |
| Publisher version: | https://www.bloomsburyprofessional.com/uk/current-... |
| Language: | English |
| Additional information: | This version is the author accepted manuscript. For information on re-use, please refer to the publisher's terms and conditions. |
| UCL classification: | UCL UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
| URI: | https://discovery.ucl.ac.uk/id/eprint/1477085 |
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