Mirror & Mutual Wills

Introduction

  • Overview of the CPQ advanced stage wills, probate, and private client module.

Mirror Wills

  • Definition: Wills made by spouses, civil partners, or cohabitees that reflect each other’s terms.
  • Example: Husband and wife appoint each other as the sole executor and leave the estate to the survivor; children are appointed executors and beneficiaries on the second death.
  • Key Point: Each party can revoke or alter their will independently as long as they have testamentary capacity.

Mutual Wills

  • Definition: Wills made by parties with a mutual agreement not to change the terms after one dies.
  • Evidence Requirement: Must be clear evidence of an agreement (does not have to be in the will).
  • Key Principle: Surviving party can create a new will but equity may impose a constructive trust to enforce the original agreement.

Class of Gifts

  • Definition: Gifts made to a group rather than individuals (e.g., “to my children”).
  • Importance: Determines how property is distributed among unspecified persons fulfilling a description.
Class Closing Rules
  • Purpose: Rules determine when membership to the class closes for distribution purposes.
  • Example: A gift to “the children of Anne” may change if more children are born before distribution.
  • Case Reference: Perks and Mosley (1818) establishes class closing rules; class closes when at least one beneficiary can immediately receive their share.
Types of Class Gifts
  • Immediate Class Gift: E.g., £1,000 to the children of X; closes at the testator's death if at least one child is alive.
  • Remainder Class Gift: E.g., life estate to X, remainder to the children of N; class remains open during X’s lifetime.
  • Contingent Class Gift: E.g., to children of A that reach 18; class closes if any child reaches the age by the time of the testator’s death.
  • Deferred Class Gift: E.g., to X for life with remainder to children of A reaching 18; closes upon X’s death under certain conditions.
Failure of Gifts
  • Causes of Failure: Gifts might fail due to disclaimer, redemption, lapse, uncertainty, and conditions set forth in the Wills Act 1837.
  • Important Points:
    • Disclaimer: Beneficiaries can refuse gifts, but cannot cherry-pick parts.
    • Redemption: Specific legacies fail if their subject matter is no longer part of the estate (e.g., property sold).
    • Lapse: If a beneficiary predeceases the testator, the gift lapses unless a substitutional gift is made.
    • Automatic Substitution: Section 33 of the Wills Act allows a deceased child’s share to go to their children.
    • Joint Tenants: If one joint tenant dies, the surviving tenants receive the gift; it does not lapse.
Conditions and Uncertainty
  • Conditioning: Gifts conditional on beneficiaries committing illegal acts or conditions against public policy will be void.
  • Uncertainty: If an object or beneficiary is not clearly identified, the gift fails (e.g., ambiguous terms).
Interpretation of Wills
  • Ambiguity Resolution: Courts may consider extrinsic evidence to clarify ambiguous language or meanings in wills (Section 21, Administration of Justice Act 1982).
  • Case Examples: Various cases demonstrate how courts handle ambiguities and apply section 21 to discern the testator's true intentions.

Conclusion

  • Overview of key points from Chapter 7 on wills, including nuances of gifts and the importance of precise drafting.
  • Reminder: Important aspects to consider when preparing or interpreting wills in practice, including familial relationships and changes in beneficiaries.