This chapter considers the potential impact of mutual wills in the increasingly important context of informal care, using Dr Sloan’s previous work on informal carers in private law as its backdrop. It begins by outlining the mutual wills doctrine focusing on English Law, before evaluating the limitations that mutual wills might place on a testator’s ability to leave property to a carer who has provided essential support to the survivor after one party to a mutual wills arrangement has died. The chapter then goes on to explore the restrictions that the doctrine can place on the carer’s ability to bring claims against the survivor’s estate, whether framed in proprietary estoppel or under family provision legislation, highlighting the fact that the mutual wills doctrine cannot be understood solely as a fetter on testamentary or donative freedom and has a strong link to the general normative difficulties surrounding testamentary contracts. In doing so, the chapter compares the effect of the mutual wills doctrine, and the constructive trust that can be generated by it, with the minimum equity based remedial approach of proprietary estoppel. It highlights the advantages of the minimum equity style approach as compared to the rigidity of the courts’ approach to mutual wills, albeit with an awareness of the perceived disadvantages of judicial discretion in property law.
Hudson, Siôn and Sloan, Brian, Testamentary Freedom: Mutual Wills Might Let You Down (August 7, 2015). Modern Studies in Property Law, Volume 8, Hart Publishing, 2015; University of Cambridge Faculty of Law Research Paper No 45/2015.