Mutual wills – some constructive thoughts

Mark Pawlowski Barrister and Professor Emeritus of Property Law School of Law University of Greenwich

The doctrine of mutual wills operates on the basis that each testator provides consideration for the other’s promise not to revoke by making his will in the agreed terms and not altering it to the date of death. In other words there must be a binding agreement between the two testators for the doctrine to apply. The decision in Healey v Brown [2002] 4 WLUK 529 however has gone further and suggested that s 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 applies to a contract relating specifically to land made between testators making mutual wills so that it is void at law unless each will is signed by both parties or the wills are in absolutely identical terms and duly exchanged. The way out of this problem is to apply constructive trust theory which does not depend upon proof of a binding legal contract and is expressly exempted from the requirements of s 2(1) by virtue of s 2(5). The use of the constructive trust however...