Mutual Wills: Till Death Do Us Part?
Inheriting its legal history from English law, the mutual wills doctrine has operated in Singapore for decades. Yet, the doctrine of mutual wills remains a mystery to many lawyers, let alone lay persons. Indeed, it remains challenging to understand the underlying principles under the operation of this doctrine, its legal principles involved and the future of this doctrine.
Testamentary freedom is an important right. Most would have the expectation that testators1Including those not bound by the Faraid under the Administration of the Muslim Law Act 1966 have the freedom to dispose of property on death provided that the testator follows certain formalities in their making of wills. This freedom has, to an extent, been curtailed to protect dependents. A testator may no longer leave dependents destitute and adult beneficiaries may divert assets to others via deeds of family arrangements with an equal freedom to that of the testator and may even make gifts to persons whom the testator may have loathed. The drafting of wills is therefore a complex business, as everyone should die with a valid will that reflects their wishes. When taking instructions, the testator will need to account for his past, current and potential future relationships as well as those of other family members.
However, the legal practitioner should remember that the client is mainly, if not exclusively, interested in the destination rather than the fine technical detail of the legal instrument or device or vehicle (as the case may be) and the route used to get there. Mutual wills are still used as a legal instrument, and yet remains poorly understood. Relationships have the innate capacity to flourish, but they also stagnate or even breakdown in a non-linear non-static process. The recent case of VTL v VTM & Anor  SGHCF 30 (VTL)2VTL v VTM & Anor (2021) SGHCF 30 is a rare case of litigation seen in Singapore over the admissibility of a set of mutual wills executed in 2001. The case of VTL was publicised in the Straits Times, eliciting discussions from members of the public and lawyers alike on the desirability and utility of mutual wills in the context of estate planning.
Inheriting its legal history from English law, the mutual wills doctrine has operated in Singapore for decades. Yet, the doctrine of mutual wills remains a mystery to many lawyers, let alone lay persons. Indeed, it remains challenging to understand the underlying principles under the operation of this doctrine, its legal principles involved and the future of this doctrine. In particular, it is difficult to understand how this doctrine will operate in the face of a dissolution of a marriage or remarriage, the rule of ademption and its exemptions, and whether the Court in the face of a divorce (or judicial separation) action has first, the power and/or jurisdiction to make orders on assets affected by any mutual will, and second, on the basis that it does, should consider the agreement as set out in the mutual will, and whether such agreement may be oral, in writing, or proved by extraneous evidence, if not incorporated into the will, since such evidentiary issues may be a source of contention as well. Notably, in the case of English case of Legg et al. v. Burton et al .,3Legg v Burton (2017) EWHC 2088 (Ch) the English High Court found that one of the claimants, being an adult child of the testators had heard the parties’ communications with one Mr Reid, the parties’ solicitor, as follows,
“He reminded me that he had asked Mr Reid about the wills being ‘set in stone’ and I had heard Mr Reid’s answer. I said I didn’t think the answer was satisfactory, but my Father seemed dismissive and told me that there was no need for any further complication as both he and my Mother had discussed all scenarios and promised each other that each one would adhere to the other’s wishes. He said that they had already agreed that they would not make any further changes to their wills, and that they would not revoke them –even after the other had passed away. He said he had no intention of making further changes, and he knew that my Mother didn’t either because he had already promised her and she had already promised him. My Mother actually heard this comment, and she shouted through from the kitchen ‘No I bloody won’t change it either’”.
Back to Basics: The Mutual Wills Doctrine
In order to prove the existence of mutual wills, the following must be shown:
- There was a prior agreement by the testators to make mutual wills, intending their agreement by the testators to make mutual wills intending their agreement to become irrevocable on the death of the first to die. The case law from the Commonwealth suggests that such agreement may be oral, in writing or incorporated into the will, or proved by extraneous evidence; and
- The making of the mutual will. 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 inherent tension of mutual wills is explained succinctly in Mellows: Law of Succession (at p 28) as follows,
“Mutual wills involve a conflict of principle. Wills are mutual wills only if made in pursuance of a prior agreement not to revoke without the consent of the other. This is a contract and is enforceable. On the other hand, it is a cardinal principle of the law of wills that a will may always be revoked. The evident solution to the conflict which has arisen is that the will itself is revoked by one party without the other’s consent, but such revocation may give rise to an action for breach of contract. Furthermore, it is established that on the death of the first person to die, a trust arises in favour of the beneficiaries, and if the survivor revokes his will proceedings may also be taken for breach of trust.”
In VTL, the Father and his wife, the Mother executed mutual wills in 2001 before their lawyer. The Father and the Mother had five children, their daughters, VTM, VTJ, VTN, and their sons, VTC and VTL. The Father died in 2004 and the Mother died in 2019. It then transpired that the Mother was brought to another lawyer in 2017 or thereabouts by VTM, her daughter, to make another will. VTL recalled that he had possession of the mutual wills which gave him 35% of the estate, VTC’s son, VTE 35% of the estate and the daughters 10% each. Under the 2017 Will, all of the Mother’s properties were bequeathed to VTM and VTN equally and their siblings VTL, VTC and VTJ were to receive $1 each. Accordingly, the difference in beneficial interests under the mutual will and the 2017 Will was substantial. VTL filed a suit for a declaration that the mutual will was the last will and testament and the grant of probate in respect of the 2017 Will be revoked. The defendant sisters VTM and VTN counter-claimed for an order that the 2017 Will was the last Will and testament of the Mother. The Court found that the 2001 mutual wills were validly entered into, and given that they had been found must take precedence over the 2017 Will of the Mother.
Mutual Wills: A Source of Contention?
Prior to the 2021 decision in VTL, there was a dearth of reported judgments in Singapore as regards mutual wills. The reasons for this crystallised in the Malaysian High Court case of Hiroto Watanabe v Law Yen Yen & Anor  1 MLJ 288 (Watanabe) are no different in Singapore. In Watanabe, Harmindar Singh JC opined:
“The reason for this may be more apparent than it seems. At the time of distribution of the estate, one party is already dead and the beneficiaries may be none the wiser as to the terms of the wills which is a travesty in itself.”4Hiroto Watanabe v Law Yen Yen & Anor (2011) 1 MLJ 288 at (2)
However, the very premise of entering into such an instrument means that disputes will nevertheless arise. Furthermore, the recission of a mutual will not only requires notice to the other party, but consent as well, since a unilateral termination of the contract would constitute a breach of the agreement between the parties. Therefore, neither party, in the absence of a mutual rescission, may revoke the mutual will unilaterally, in breach of the agreement.
With that in mind, it would be worthwhile considering some of the possible disputes which are unique to mutual wills, and indeed the potential cause of actions and remedies open to a plaintiff.
- First, after the death of one testator, if it is discovered that the deceased had made a new will, the survivor may sue for the breach of contract, or beneficiaries under the mutual will have the right to sue the surviving spouse for breach of contract (on the basis of the agreement). The Court may award damages, for the value of the interest lost to the plaintiff. Furthermore, if the parties under a mutual will were still alive and there was a breach of the agreement, the other party may start an action for breach of contract and seek specific performance in equity.
- Second, where there is a concluded performance of the agreement by one party, it may be argued that this would lead to an imposition of a constructive trust, on the basis of the will if the surviving spouse seeks to revoke the will after the death of his or her spouse without obtaining consent prior to his or her spouse’s death. This is because upon the death of one of the parties “a trust arises in favour of the beneficiaries, and if the survivor revokes his will, he may be taken for breach of trust”. (see Watanabe, at ).
- Third, whilst a wholly different and distinct legal concept, it may be open to a party or beneficiaries under the mutual will to rely on the doctrine of restitution by trying to prevent unjust enrichment, leading to a constructive trust remedy in equity or compensatory damages at common law.
- Last, it is arguable for a surviving party or the beneficiaries to rely on the doctrine of proprietary estoppel. Put simply, the doctrine arises where B promises or assures A that B will give A an interest in property B owns. For A to gain a right against B at all, A must act in detrimental reliance on B’s promise, yet B is not invariably bound by a constructive trust to perform her promise. Although a constructive trust may be imposed, compensatory damages may also be awarded. In the High Court decision of Tsu Soo Sin nee Oei Karen v Ng Yee Hoon  SGHC 30, the Court found that “a promise to make a gift to a third party would constitute a sufficient detriment and whether the parties make mutual promises to make such a gift, each promise may be consideration for the other …. and was an enforceable agreement.”5 Tsu Soo Sin nee Oei Karen v Ng Yee Hoon (2008) SGHC 30 However, it remains for the courts to decide whether a claim relying on estoppel may be defeated because of the binding nature of a mutual wills arrangement.
Mutual Wills: Until Death Do Us Part?
As married couples may use mutual wills as an estate planning tool, the question of how this doctrine will operate in the face of a dissolution of a divorce and then a subsequent remarriage should be considered, and whether the Court in the face of a divorce (or judicial separation or annulment) action has first, the power and/or jurisdiction to make orders on assets affected by any mutual will, and second, on the basis that it does, should consider the agreement as set out in the mutual will, or such agreement may be oral, in writing, or proved by extraneous evidence, if not incorporated into the will.
In the meantime, for parties undergoing matrimonial proceedings in Singapore, the Court can deal with the matrimonial assets and make relevant orders pursuant to section 112 of the Women’s Charter which may well affect the parties’ respective rights, and interests of assets dealt with under the mutual wills. It is currently unclear whether the Court has the power and/or jurisdiction to revoke, set aside or vary the mutual wills, where there is no agreement by the parties that such mutual wills agreement should be revoked.
The parties are then left in an unenviable position of being potentially unable to bequeath their estate to beneficiaries of their choice and are instead shackled to an agreement made at a time when their marriage was intact. To complicate matters, the Wills Act does not provide that mutual wills are revoked upon marriage or remarriage.
Accordingly, in the event of a marriage or remarriage, this may invariably open up claims by dependents under the Inheritance (Family Provision) Act 1966 on the basis that the mutual will does not adequately provide them with maintenance. However, where such a claim is made, it is questionable whether the second to die’s testamentary dispositions under the mutual will are immune from alternation under the 1966 Act on the basis that claims for financial provision against a person’s estate after his or her death can only be made against the “net estate” as defined at section 2 the Act, i.e. “all the property of which a deceased person had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities and estate duty payable out of his estate on his death”; and it appears that assets bound by a mutual wills arrangement may fall outside this definition.6
See also the English law position in Hughes, “Mutual Wills” (2011) Private Client Business, 131, 132, cited in Sion Hudson and Brian Sloan, “Testamentary Freedom: Mutual Wills Might Let You Down”, Modern Studies in Property Law (8th ed 2015) at pp.157, 174.
However, it is noted that the High Court of Australia had allowed a claim under family provision legislation where a mutual wills arrangement existed.7See the Australian position as set out Barns v Barns (2005) WTLR 1093
Alternatively, married parties may be advised to take steps to make gifts or settle trusts or dispositions during their lifetime, which is also an unenviable position to be in. Indeed, if a husband is concerned that he is bound by the terms of the mutual will agreement and is not in a position to validly revoke the mutual will agreement without agreement from wife, he may decide to make inter-vivos transfers to third parties to protect his beneficiaries. If the parties are divorcing or divorce soon after, then the Wife may apply to the Court under section 132 of the Women’s Charter to exercise their powers to “set aside any disposition of property, if it is satisfied that the disposition of property has been made within the preceeding 3 years, with the object on the part of the person making the disposition of (1) reducing that person’s means to pay maintenance; or (2) depriving that person’s wife, former wife, incapacitated husband or incapacitated former husband of any rights in relation to that property”, including providing the applicant injunctive relief in preventing such disposition by the Husband.
If parties’ marriages are on the rocks, the parties should consider revoking their mutual wills by agreement, and/or in the alternative, enter into postnuptial agreements recording their revocation of mutual wills and how assets may be dealt with in the event of a divorce. The Court has the power under section 112(2)(e) of the Women’s Charter to consider “any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce”.
In order to ensure that the parties may proceed to deal with their assets and/or bequeath assets post-divorce in accordance with their wishes, it is proposed that the Womens’ Charter could be amended to provide the Court’s power to set aside and/or vary any mutual wills entered into parties prior to dissolution proceedings.
Practical Considerations and Pitfalls in Entering a Mutual Will
Testators entering into mutual wills may not foresee some problems arising from using a mutual will, which can undermine the desirability or effectiveness of a mutual will. Testators should be aware of the following practical considerations and pitfalls:
- A change in circumstances after the death of the “first-to-die” testator which requires the survivor testator to deal with the assets under the mutual will in a different way from which was contemplated and agreed.
- The costs incurred by the original beneficiaries of the mutual will to enforce the agreement if the survivor testator revokes the mutual will.
- Potential disputes regarding the enforceability of the agreement and the extent of the assets bound by the mutual will agreement.
- The possibility of a claim under the Inheritance (Family Provision) Act 1966 which might deprive the original beneficiaries of the mutual will, of some, if not all, of the intended inheritance, in the event either testator remarries and has other dependants.
- The fact that there is nothing preventing the surviving testator of a mutual will from depriving the intended beneficiaries of the intended inheritance by disposing of the assets during his lifetime (e.g. by spending it or making lifetime gifts).
- The possibility that the existence of the mutual will goes unnoticed. If the surviving testator hides or destroys the mutual will and makes a new will in contravention of the mutual will, the new will may be unchallenged if nobody is aware of the existence of the mutual will.
Mutual Wills May Be Here to Stay
Despite the drawbacks and perceived injustice of mutual wills, the fact remains that some parties still desire and intend to create a binding contract in relation to their wills. They may want to leave their assets to their current spouse, but at the same time make sure that their children from previous relationships will not miss out on any financial provision on the death of the survivor. Or there may be a particular immovable property or heirloom that needs to stay with the side of the family from which it was originally inherited.
There are any number of reasons why clients might insist on making a binding contract as to how their estate should be devolved upon their death. Estate planning practitioners need to be cognizant of these clients and provide them with proper advice. In a New South Wales Court of Appeal case,8Aslan v Shehadie (1998) NSWSC 676 a practitioner was alleged to have been negligent in failing to advise his clients on the need for a “non-revocation agreement” between each of the testators. Whilst the New South Wales Court found no negligence, Justice Giles’ guidance for solicitors is nevertheless instructive:
“I think it would be usual to explain all wills may be revoked and I think it would naturally follow from that if the solicitor was told that the parties didn’t wish to be able to revoke the wills they be given the advice there would need to be a deed or contract in relation to the ongoing wills to they couldn’t be revoked”.
Re-Marriages: Giving Love a Second Chance
Traditional family structures are the prevailing norm in Singapore. According to the Singapore Department of Statistics, 80.5% of all marriages in 2021 involved first-time grooms and first-time brides.9Department of Statistics, Singapore, “Marital Status, Marriages and Divorces”, <https://www.singstat.gov.sg/find-data/search-by-theme/population/marital-status-marriages-and-divorces/latest-data> (accessed on 17 October 2022) The proportion of remarriages involving one partner and both partners is 12.6% and 6.9% respectively. The median age for grooms who were remarrying in 2021 is 42.4 years while slightly lower for brides is at 37.6 years. Suffice to say, the data points towards an increasing trend or minimally the possibility of a growing population of blended families in Singapore, where a family structure consists of at least one spouse having children from a previous marriage. The significance of this trend was noted by the Straits Times earlier this year in 2022, reporting on stories featuring the lives of a few successful blended families.10 Yeo, Stephanie, “Remarried with kids: Couples share how they have made love work with children in tow” (26 February 2022), <https://www.straitstimes.com/life/blended-families-couples-share-how-they-have-made-love-work-with-children-in-tow> (accessed on 17 October 2022)
Some of these blended families may have accumulated significant assets by the time of remarriage, so they may wish to protect those assets (especially if some of these assets are likely to change form during marriage). A portion of these people may have fought very hard for the custody and care and control of their children and are “once bitten, twice shy”, so they wish to enter into their next marriage knowing that their own assets will be preserved for the maintenance and enjoyment of their children while ensuring their new spouse’s financial welfare is taken care of.
In such a context, a mutual will may be an inexpensive estate planning tool, compared to the setting up of trusts. It will accordingly be useful for couples who are willing to:
- Uphold their agreement to look after one another’s children from previous relationships and want to ensure that the children can legally enforce that agreement.
- Cause conflict as the right to sue may be vested in the children from the previous relationship against the estate of the surviving spouse if that spouse fails to make agreed provisions to them in accordance with the deceased person’s will.
- Not to amend the will in the future, unless with consent of the spouse. This may be applicable for couples who are significantly older.
- Having appropriate carve-out clauses to be drafted in to clearly provide for instances where a mutual wills agreement may be revoked, for example, by express consent, in instances such as the commencement of divorce, judicial separation or annulment proceedings.
Problems with policing mutual wills can be partially mitigated if practitioners obtain consent from clients to deliver a copy of the mutual will to a third party, to prevent the surviving testator concealing or forgetting about its existence.
The Road Ahead: Where Clarity is Needed
Mutual wills are a little known but nevertheless a convenient route for testators who wish to ensure that the assets gained by the testator during their lifetimes are bequeathed in accordance with their joint wishes, without fear of external influence of family members and friends after the death of one testator. They give rise to legally binding obligations on the part of the testators: a breach of these obligations is considered an “equitable fraud” and may be relied upon by a testator, or the intended beneficiaries under the mutual will, when seeking relief. If clients wish to control how those who inherit their assets deal with it following their death, practitioners should consider other ways of doing so, such as giving a person a life interest of the asset under a trust rather than inheriting the asset under a mutual wills arrangement.
Practitioners need to take particular care when setting up mutual wills or advising on them, since this doctrine remains steeped in misunderstanding. It is proposed that legislative change is required to address what appears to be an unsatisfactory state of affairs. The Wills Act11For instance, section 30 of the New Zealand Wills Act 2007 provides clarity of what mutual wills are, and in what circumstances a claim may arise, in addition how the mutual wills agreement may be evidenced. may be amended to place mutual wills on a statutory footing by providing clarification on the operation of the doctrine, and how such mutual wills agreement may be revoked and whether marriage/re-marriage would revoke the mutual wills agreement, and whether the courts have the power and/or jurisdiction to revoke any mutual will agreement, in particular where there are proceedings for divorce, judicial separation or annulment. Further, the Inheritance (Family Provision) Act 1996 may need to be amended if the Act currently provides no relief to a dependent who is not provided for under the mutual wills. The lack of clarity vis-a-vis the operation of the rule of ademption and any exemptions by statute or common law should also be addressed. After all, if mutual wills are entered on a premise that they should survive the death of both parties, then the law must follow suit to protect individuals when the commitment “Till Death Do Us Part”’ no longer holds any weight.
The authors wish to express their gratitude to Beverly Goh and Gershom Ong for their assistance in this article. All errors remain our own.
|↑1||Including those not bound by the Faraid under the Administration of the Muslim Law Act 1966|
|↑2||VTL v VTM & Anor (2021) SGHCF 30|
|↑3||Legg v Burton (2017) EWHC 2088 (Ch)|
|↑4||Hiroto Watanabe v Law Yen Yen & Anor (2011) 1 MLJ 288 at (2)|
|↑5||Tsu Soo Sin nee Oei Karen v Ng Yee Hoon (2008) SGHC 30|
See also the English law position in Hughes, “Mutual Wills” (2011) Private Client Business, 131, 132, cited in Sion Hudson and Brian Sloan, “Testamentary Freedom: Mutual Wills Might Let You Down”, Modern Studies in Property Law (8th ed 2015) at pp.157, 174.
|↑7||See the Australian position as set out Barns v Barns (2005) WTLR 1093|
|↑8||Aslan v Shehadie (1998) NSWSC 676|
|↑9||Department of Statistics, Singapore, “Marital Status, Marriages and Divorces”, <https://www.singstat.gov.sg/find-data/search-by-theme/population/marital-status-marriages-and-divorces/latest-data> (accessed on 17 October 2022)|
|↑10||Yeo, Stephanie, “Remarried with kids: Couples share how they have made love work with children in tow” (26 February 2022), <https://www.straitstimes.com/life/blended-families-couples-share-how-they-have-made-love-work-with-children-in-tow> (accessed on 17 October 2022)|
|↑11||For instance, section 30 of the New Zealand Wills Act 2007 provides clarity of what mutual wills are, and in what circumstances a claim may arise, in addition how the mutual wills agreement may be evidenced.|