Mark Pawlowski asks whether proprietary estoppel can be used to underpin the enforcement of mutual wills
- There is no reason why proprietary estoppel could not be applied, in appropriate cases, to resolve the problems associated with oral agreements intended to give rise to mutual wills which do not comply with s 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989.
Mutual wills arise where two parties (usually husband and wife) make wills, pursuant to a binding agreement, in similar form in each other’s favour on terms that the survivor will not revoke his or her will after the death of the other. The doctrine operates on the basis that each testator provides consideration for the other’s promise by making his or her will in the agreed terms and not altering it to the date of death. In other words, the traditional view is that there must be a binding legal contract between the two testators for the doctrine to apply: see, for example, Re Goodchild [1997] 3 All ER 63.
But is this necessarily so? The recent decision
