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29 September 2023 / Mark Pawlowski
Issue: 8042 / Categories: Features , Wills & Probate
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Promises, promises: mutual wills & estoppel

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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

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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