Business Succession, Mutual Wills & Proprietary Estoppel

The England and Wales High Court (EWHC) has rejected a will challenge made by two brothers on the basis of mutual wills allegedly made by their parents. Nevertheless, it allowed the claim on the alternative ground of proprietary estoppel.  This is one of those cases which underline the crucial importance of written evidence and clarity when considering business succession. 

The challenge was brought by Richard and Adrian Winter (the claimants), whose father (the deceased) had made a will in 2015 leaving his share in the family business to a third son, Philip (the defendant). The claimants argued that the deceased and their mother, who had died in 2001, made mutual wills in 2000 splitting the business equally among the three siblings.

On her death, their mother left her share in the farming partnership to the three sons in equal shares and the residue to the deceased. It was the deceased’s later decision to change his will that the claimants opposed, arguing that their parents had originally made wills in the same terms.

This was not disputed by the defendant, even though the executed version of the will the deceased made in 2000 had not been found. Instead, he argued that the wills were not mutual, and the deceased was not bound by an agreement not to change his own will.

The EWHC noted there was no documentary evidence of any such agreement and very little evidence of any discussion either of the parents had with anyone as to their testamentary intentions. The mother had talked to another family member shortly before her death about her and the deceased’s wish that the business would be passed to their children, but the EWHC said that such an agreement did not go far enough.

There was also nothing to support the mutual wills case in the files held by the family’s solicitor, the court found. The solicitor had accepted in cross-examination that he had not asked the parents whether they intended to make mutual wills but said that was because there was nothing in the circumstances that suggested that might have been their intention.

‘The very fact that Albert felt able to change his will without compunction points away from him having agreed with Brenda that his will could not be revoked after her death’, commented the EWHC. It further noted that the deceased was considered ‘a loyal person who felt bound to honour his promises’ and that this counted against the case for mutual wills, ‘the essential feature of which is the agreement between the testators that the survivor’s will cannot be changed.’

Accordingly, the EWHC rejected this ground of the claimants’ case.

It did, however, allow their claim to a one-third share of the parents’ partnership and company assets (although not their personal assets) on the alternative ground of proprietary estoppel (Winter v Winter, 2023 EWHC 2393 Ch).

The case report is well worth reading:

Proprietary estoppel is a legal remedy that can be used when a landowner has promised property will be transferred to someone else later, only to renege on their statement. It’s often used as an alternative claim by people looking to contest a will. 

It can occur, for example, when a parent has promised land or property to a child, either verbally or by conduct, but states something different in their will. This commonly happens with farming businesses where offspring have worked for many years on low wages, believing they will one day inherit the farm.


Steve Parnham, October 2023