MUTUAL WILLS

Joint will: One instrument that serves as the will of two or more people. The instrument is probated
(proved and allowed by the court) each time a contestator dies. Generally, it is not good practice to
draw joint wills; the parties may separate, one of them, rather than both, may have custody of the will
and the other may not know its whereabouts; one of them may destroy the will without the others
knowledge or consent. It is better to draw a separate will for each testator, even if the wills are
identical.
Mutual wills: (Also called Reciprocal Wills) are separate, identical wills for each testator containing
reciprocal provisions accompanied by an agreement that neither testator will change his will after the
death of the other.
Mutual will one of the testamentary documents made respectively by two persons giving each other
similar rights in each others property. It implies the separate wills executed on the same day
containing similar provisions. Two persons may agree to make mutual wills which remain revocable
during their joint lives by either of them with notice to the others the peculiar characteristic of this kind
of wills is that they become revocable after the death of one of them, if the survivor takes advantage
of the provisions made by the other.
This was illustrated in Hiroto Watanabe v Law Yen Yen:
(1) To prove mutual wills, it must be established that there was an
Irrevocable agreement to distribute the estates in a particular way at the time of the
making of the mutual wills.
The fact that the wills were executed at the same time and have the same terms is a
relevant consideration to prove there was such an agreement but it is by no means
conclusive.
Agreement may be by oral or in writing, be incorporated in the will or proved by
extraneous evidence and must be established by clear and satisfactory evidence on
the balance of probabilities.
What is decisive at the end of the day that there was an agreement by the testators
for the wills to be irrevocable and to remain unaltered a common intention,
expectation or desire will not suffice. It may therefore, be insufficient for a husband
and wife to merely have corresponding wills or mirror wills as they may carry no
obligation to be revoked.
(2) Detailed nature of the 2002 Wills and especially the contents showed that in the event the
deceased predeceased the Plaintiff, her two children would be provided for and that was the
deceaseds main concern and she had clearly intended the will to be irrevocable. This was
supported by the evidence of the P of the deceased had expressly stated to the witnesses to
the will that there was a promise by both the deceased and the P to never change the wills.
Therefore, there was no doubt that there was an agreement between the P and the deceased
that the terms of the wills would be irrevocable.
(3) Deceased broke promise without giving notice to the P. The fact that the deceaseds last will
of 2007 talked about the possibility of the P transferring his half share to the deceased
seemed to be all pre-planned and well-executed. The plan was to get the P to transfer his
share of the properties and then for the deceased to revoke the will and deprive the P of his
interest in the properties under the mutual wills.
(4) Trite law promise made in mutual wills cannot be lightly disregarded. It has long been
established that when one act s on the faith of an agreement to make mutual wills, equitable
obligations will arise to prevent the offending party from acting unfairly. Considering the

jurisprudence regarding the doctrine of mutual wills, it is trite law that the court of equity will
not permit any transfer of the property which is inconsistent with a legally binding obligation. It
is also trite that equity attaches to the principal of irrevocability in the doctrine of mutual wills
which comes into operation when the first to die does so without revoking his or her will. The
principles of equity are equally applicable where the survivor had acted to his detriment or has
suffered serious prejudice when acting in full faith and reliance on the agreement or
understanding reached between the testators at the time of the execution of the mutual wills.
This will especially apparent in a situation where the first to die had acted unilaterally and
without notice or worse still, had acted in a secret or clandestine fashion in revoking the will
entered into on an irrevocable basis. This was precisely the case in the instant action when
the deceased acted unconscionably in revoking her 2002 will secretly to his detriment and
prejudice to the Plaintiff.
(5) Here, serious prejudice to the Plaintiff. It would be unjust and unconscionable in the
circumstances to permit the deceased and now her estate and her children to profit from her
breach to his detriment. Held: D to hold the properties on trust for the P in accordance with
the terms of the 2002 will.