Can a verbal agreement be binding in relation to a mutual Will?

A Mutual Wills Agreement (MWA) is an agreement between two people to make their Wills in particular terms and to not alter those terms in the future.

A MWA does not arise merely by a couple executing Wills together but requires an actual agreement to limit the future alteration of the Wills. This agreement is generally set out in a separate contract or referenced in the Wills themselves. However, in the recent decision of Re Miglic the Supreme Court of Victoria found a verbal agreement made nearly 30 years prior to death constituted a binding and enforceable MWA.

Facts of Re Miglic [2024] VSC 20

  • Kurt and Marilyn Miglic were spouses from the 1960s until Kurt’s passing in 2007. Kurt had two children, Lisa and Andrea, from a prior marriage, whereas Marilyn did not have any children.
  • In 1981, Kurt made a Will that contained a life interest for Marilyn but with all his assets eventually passing to his children.
  • In 1988, Kurt made a further Will that likewise contained a life interest for Marilyn with all his assets eventually passing to his children. Marilyn also made a Will at that time that made fixed provision for her nephew and nieces (Stephen, Victoria and Louise) with the residue passing to Kurt, or his children if he was deceased.
  • In 1993, Kurt and Marilyn made new Wills that simply left everything to each other initially and then (aside from minor gifts to Stephen, Victoria and Louise) everything to Kurt’s children when they both passed.
  • Kurt died in 2007 with his entire estate passing to Marilyn pursuant to the 1993 Will.
  • Marilyn made new Wills in 2001, 2005, 2011, 2014 and 2018. It was found that Kurt had not consented to the new Wills made during his lifetime given he had advanced dementia at the time.
  • Marilyn died in 2020 and by her last Will:
    • gifted a property 1/5 each to Lisa, Andrea, Stephen, Victoria and Louise – this property was sold for $11.5M and was the major asset; and
    • apart from other minor gifts, left the balance between Andrea, Victoria and Louise.
  • Lisa and Andrea brought proceedings alleging that Kurt and Marilyn made a binding agreement in 1993 that they would not change their Wills (such that Kurt’s children would ultimately receive the majority of the survivor’s estate) without the consent of the other.

The evidence of a Mutual Wills Agreement

There was no written record of any MWA. 

In support of the MWA:

  • Lisa and Andrea gave evidence of a number of conversations from 1993 where Kurt relayed that he and Marilyn had agreed that everything would go to them when they both passed and that they could not change their Wills without the others’ consent. Marilyn had apparently been party to some of these conversations.
  • Their mother and Andrea’s ex-husband also gave supporting evidence of similar conversations with Kurt.
  • Lisa and Andrea also produced their solicitor’s notes to show that they had immediately raised the issue of a ‘family agreement’ with him when seeking advice and not invented that later when advised about the concept of a MWA.

Against the MWA:

  • The solicitor who prepared the 1993 Wills gave evidence that Kurt and Marilyn had made no mention to him of any agreement that they could not later change their Wills.
  • Stephen, Victoria and Louise argued that Lisa and Andrea’s evidence had shifted over the course of the proceedings and was not reliable.
  • Stephen, Victoria and Louise were otherwise at a disadvantage in that they could not give direct evidence on relevant discussions as they were not part of the immediate family and were not involved in those discussions.

The findings of the Supreme Court of Victoria

The Supreme Court of Victoria found that Kurt and Marilyn had entered into a binding verbal MWA at the time of executing their 1993 Wills. The findings further noted:

  • A key issue was whether there was merely an expectation that the intention would be honoured or if it was intended to be legally binding. 
  • A couple making Wills together that ultimately leave their estates to the same beneficiaries is not, of itself, sufficient reason to conclude an intention that neither is able to make a new Will in the absence of the other’s consent.
  • Caution must be had in accepting evidence of verbal agreements. It is well recognised that honest people’s memories can become unreliable and the risk of that happening is very real in the context of litigation where people have a lot to lose or gain by their evidence. In this scenario, the MWA was proved by hearsay evidence of representations made by Kurt and Marilyn up to 30 years ago (with hearsay generally being inadmissible but an exception is made where the relevant person is deceased).
  • Notwithstanding the difficulties with the evidence, the standard of proof remains the ‘balance of probabilities’.  

The outcome of the finding is that Marilyn’s 2018 Will remains valid, but her estate is subject to a trust that reflects the terms of the 1993 Will. Lisa and Andrea will therefore receive the vast majority of her estate.

Key takeaways for mutual Wills

This case highlights the complexities in planning for blended families.

It also highlights the importance for a couple to be clear around whether they intend that their Wills could be changed in the future as circumstances or objectives change, or if they intend to be bound to the agreed plan. If the latter is the case, then this needs to be recorded in a written MWA. While a verbal agreement was upheld in this case, it is likely that this is the exception rather than the rule.

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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.