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Promises and Will Disputes

by Ridley&Hall in Sarah Young, Will Disputes, Wills posted October 13, 2023.
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“The best way to keep one’s word is not to give it” said Napoleon Bonaparte. Wise words indeed, especially in relation to disputes involving families and wills.

A case involving the self-styled ‘Lord’ Brett McLean and his late mother’s £300,000 estate, reported in the Daily Mail on 21 July 2023 is the latest of a long line of will disputes involving disappointed adult children who have trusted a step parent to ‘do the right thing’ in their will, and been let down.

The Issue at Hand

Lots of couples make mirror wills. For ease of reference only,  let’s assume that we’re talking about a husband (H) and a wife (W). In their wills, H leaves everything to W and W leaves everything to H in the event of their death.  The wills also provide that on the second death, provision is made from the joint estate for the couples’ children and/or grandchildren. Nowadays, it’s often the case that couples have children from previous relationships.  How then to make sure that they are provided for by the survivor?  H cannot be certain that after his death, W won’t change her will, or perhaps re marry (marriage automatically revokes a will). By the time that W dies, H’s children may be long forgotten  – or estranged from W.  Does H have to trust W (and vice versa)? Can the law step in to make sure that the survivor doesn’t change their will?

The McLean Case

‘Lord’ Brett McLean was taken to court by his step siblings, Lorraine, Ian and Sean following the death of his mother Maureen in August 2019. Maureen had married Reginald following the breakup of his first marriage; he had 3 children from that marriage. Maureen and Reginald then had their son Brett together. In 2017 the couple made ‘mirror’ wills and wrote to all the children to explain that on the death of the survivor of them, the joint estate would be shared equally between all four children. Maureen told Reginald that if he died first, she would not change her will and cut his children out of their inheritance. However, after Reginald died in March 2019, and only some 11 days before she died, Maureen did in fact make a new will, leaving everything to her only biological child, Brett.

In certain circumstances, the law may find that wills have been made that are binding, and cannot be revoked. These are called mutual wills. Maureen’s stepchildren, in the McLean case, tried to make this argument on the basis of a legal principle called ‘proprietary estoppel’. They argued that Maureen had reached an agreement with her husband that he had ‘relied on to his detriment’ and that she couldn’t go back on her promise (not to make a new will). Unfortunately for the stepchildren, the court found that proprietary estoppel wasn’t enough to establish that mutual wills had been made. The judge said that a legally binding contract was necessary and that simply didn’t exist on the facts of the case. It must have been a bitter blow to Brett’s stepsiblings. The will drafter said in evidence that he had not advised the couple on mutual wills and that, sadly, the husband had said in the meeting at which the instructions were taken that he ‘trusted his wife implicitly not to change her will’.

There have been cases where the court has been prepared to find that a will was mutual, and therefore binding, even though on the face of it, it wasn’t. But it’s not an argument that should be put without very careful thought and consideration.

Implications for step-parent families

The honest answer is that there are perils and pitfalls to both mirror and mutual wills and there are other options that can be considered alongside a will that may better protect ‘blended’ families. Much depends on your family’s circumstances. It’s vital to get advice from an experienced and  qualified Wills & Probate solicitor..

How Ridley & Hall Solicitors Can Help

Nothing can ever entirely prevent a family falling out after a death – but in order to minimise any possible future bitterness and unfairness, it’s better to talk about these issues during the lifetime of your loved one and to take legal advice. Get in touch today with one of our Will writing solicitors on our freephone 0800 8 60 62 65.

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Sarah Young – Director & Solicitor





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