Perrins v Holland and others [2010] EWCA Civ 840 Mr Justice Lewison had applied the principles of Parker v Felgate (1883) 8 PD 171 to declare a will valid where the ­testator had given instructions in April 2000 but did not execute the will until September 2001, at which point it was accepted that he lacked testamentary capacity.

Counsel for the appellant submitted that the court should overturn Parker v Felgate because it was illogical and contrary to established principle, inasmuch as it imputes to the deceased testamentary capacity that he did not enjoy at the time he executed the will, and knowledge and approval of the effect of the document which, by reason of his very lack of capacity, he was incapable of forming.

The Court of Appeal did not agree.

The decision in Parker v Felgate was based on a number of earlier decisions and was endorsed by the Privy Council in Perera v Perera [1901] AC 354. Since then the principles in Parker v Felgate have been applied without comment, most recently in Clancy v Clancy [2003] WTLR 1097.

In two of the subsequent cases: Re the Estate of Wallace [1952] 2 TLR 925 and Re Flynn [1982] 1 All ER 882, the principles of Parker v Felgate were applied in relation to the separate requirement of knowledge and approval. The use of the expression ‘knowledge and approval’ is liable to give the impression that at the time he executed the will, the testator must be able to reconsider all the dispositions he has made.

That would require testamentary capacity, but that is not what is meant by the expression. Modern authorities recognise that a clear distinction is to be drawn between testamentary capacity and knowledge and approval. The purpose of the enquiry into knowledge and approval is to ascertain whether the will represents the testator’s true intention, and hence the decision in Parker v Felgate is consistent with principle.

At paragraph 55, Lord Justice Moore-Bick gave a useful summary of the correct approach to Parker v Felgate, saying that it is necessary to ask whether:(1) at the time the testator gave the instructions he had testamentary capacity;(2) the document gives effect to his instructions;(3) those instructions continued to reflect his intention; and(4) at the time he executed the will he knew what he was doing and thus had sufficient mental capacity to carry out the juristic act which that involves.

Charles v Fraser [2010] EWHC Civ 2124 is a very useful summary of the law on mutual wills which also contains some excellent advice to practitioners.

Two widowed sisters, Ethel and Mabel, bought a house together after the deaths of their husbands. Neither had children. In 1991, they made wills, leaving their estates to each other. Both wills provided that on the death of the survivor the assets were to be sold and the proceeds divided into 40 shares which were to pass to 15 named beneficiaries. The sisters had carefully allocated an equal number of shares to ‘their’ godchildren and family members.

Neither will contained any statement as to whether the wills had been made pursuant to an agreement nor as to whether they could be unilaterally revoked. However, there was a mountain of evidence from family members that both sisters had talked about their joint will, and had explained that on the survivor’s death the property would be divided up into shares which were already fixed and could not be altered.

Mabel died in 1995 and her property passed to Ethel. After Mabel’s death Ethel said that Mabel would never forgive her if she changed the shares.

In 2003, however, Ethel did make an alteration, though only to beneficiaries on her side of the family. She explained to friends that she was not breaking her promise to Mabel as the changes affected only her own part of the will.

In 2006, Ethel was very frail and confused and made a new will leaving everything to a friend, Mrs Fraser. She died shortly afterwards, and the beneficiaries under the 1991 will claimed that Mrs Fraser held the estate on a constructive trust for their benefit.

The court stated the relevant principles as follows:(1) Mutual wills are wills made by two or more persons, usually in substantially the same terms and conferring reciprocal benefits, following an agreement between them to make such wills and not to revoke them without the consent of the other; (2) There has to be what amounts to a contract between the two testators that both wills will be irrevocable and remain unaltered. A common intention, expectation or desire is not enough;(3) The mere execution of mirror wills does not imply any agreement;(4) It is not necessary that the second testator obtains any personal benefit under the other will (though here Ethel had);(5) It is possible to have an agreement which applies to part only of the residuary estate; (6) The agreement might be oral or in writing, incorporated into the will or proved by clear and satisfactory extraneous evidence;(7) The agreement must be established by clear and satisfactory evidence on the basis of probabilities;(8) The agreement is enforced in equity by the imposition of a constructive trust on the property which is the subject matter of the agreement;(9) The action relates only to the dispositive part of the will. The new will is fully effective to deal with non-dispositive matters.

The court found as a fact that there was an agreement between the two sisters. Evidence from those with a financial interest must be treated warily but it was consistent and convincing. The careful division of the joint estate and the sisters’ awareness of the fact that the assets of the survivor would derive in part from the deceased husband of the first to die was significant.

The judge described it as ‘remarkable’ that the agreement was not included in the will and readers should take note of the following comment: ‘I think it was the plain duty of any solicitor, then as now, faced with two sisters wishing to make reciprocal wills, to ascertain their intentions as to revocation, to advise as to the effect of making mutual wills and to ensure that the agreement the testatrices wished to make was clearly and accurately recorded.’

Professor Lesley King, College of Law, London