A promise to ‘honour your mother’s wishes’ was not enough to establish existence of mutual wills when stepchildren sued unsuccessfully to recover from their stepfather’s estate.
Lorraine and Ian McArthur married in 1984, each with children from prior relationships. When Lorraine died in 2005 leaving all her assets to Ian, Lorraine’s children did not contest her will believing they would share in Ian’s estate on his death. That did not happen. When Ian died in 2018 his estate passed to his children alone.
The High Court was told Ian and Lorraine signed mirror wills in 2002 each leaving their respective estates to the other, with a gift over should one predecease the other; the survivor’s estate was to be split 50/50 between their respective children: Ian had six children; Lorraine three. When Lorraine pre-deceased Ian, her assets passed to him. When Ian died, a subsequent will signed in 2013 left all assets to his children.
Lorraine’s children sued, claiming the 2002 wills were mutual wills; Ian was obliged to respect the 2002 arrangement. Legal rules governing mutual wills require there be an agreement not to revoke mutually agreed arrangements by means of a subsequent will. These rules are now codified into the Wills Act. There must be clear evidence of a mutual agreement.
Lorraine’s children said evidence was provided shortly after their mother’s death. This was when Ian was arranging a shift from Brisbane back to New Zealand and demanding the return of funds they lent Lorraine’s son to purchase a home for Ian’s and Lorraine’s use in Australia. The High Court was told of considerable tension at the time between Ian and his stepson. The stepson took Ian’s comments after Lorraine died of ‘honour[ing] your mother’s wishes’ as reinforcing earlier family references indicating each branch of the family would eventually get a fifty per cent share.
Justice Doogue ruled this comment was not clear evidence of mutual wills. Neither parent had promised they would not revoke their 2002 will. At no stage had Lorraine’s children been told of any written or oral agreement not to revoke. Justice Doogue contrasted this situation with other examples of litigation over mutual wills where family conferences had been held and children expressly told the terms of their parents’ wills and told of an agreement not to change those terms.
McNeish v. McArthur – High Court (12.12.19)
20.009