The mutual wills unambiguously divided any remaining estate among the four children after both Robert and Dorothy's death, and it was specifically irrevocable.
On August 10, 2010, the Appellate Court of Illinois, Fourth District, determined that a third-party beneficiary is entitled to enforce a contract embedded in a mutual will before the death of the surviving spouse.
With the settling of the doctrine of privity of contract in 1861 (2) and its exclusion of third parties who were not 'privy' to the contract, the survival of mutual wills was arguably an anomaly.
This article returns to Dufour to consider how mutual wills found their way into English law and how this affected the development of the doctrine to the present day.
Mutual wills arise where two (or more) people have made an agreement as to the disposal of their property through wills and each has, in accordance with the agreement, executed a will.
The arrangement will be characterised as one of mutual wills, rather than reciprocal wills, if there is a specific agreement that the provisions for the distribution of property set out in the wills are to be binding.
A mutual wills agreement is typically a will-making exercise with an eye to the family.
Even in respect of key issues, such as whether mutual wills are based in equity or contract law, the Court of Appeal's view is unclear.
Whilst stated in obiter, the Court of Appeal suggested that Harper J erred in doubting the correctness of Re Dale, (9) and affirmed that mutual wills can exist when the surviving testator does not benefit under the terms of the deceased testator' s will.
23) The appellant alleged that by these wills the testators intended to execute identical and mutual wills, leaving their entire estates to their children.
A more radical departure' from the alleged mutual wills agreement occurred on 13 February 1995, when Frederick transferred the unit to Daisy.
40) He alleged that Frederick had breached the trusts arising out of the mutual wills agreement by executing, inter alia, the inter vivos and testamentary documents of 13 February 1995.