Revocability of Mutual Wills

Abstract

Mutual wills are wills made in substantially the same terms by two or more persons in pursuance of a previous agreement to testate in a specific way. This agreement is usually intended to remain unchanged over time. Mutual wills thus involve a conflict with a cardinal principle of the law of wills, ie. that a will can be revoked at any time before the death of the testator. Over centuries jurists and judges have engaged with this question in an attempt to find a satisfying compromise, but this was not an easy task and the difficulties eventually contributed to the abolition of mutual wills in many jurisdictions.

This chapter is occupied with an assessment of the contribution of seventeenth-century Dutch legal science in this field, and its influence on the Legal Science of Europe. It outlines the development of the ius commune up to the eighteenth century, and then compares the evolution of the law from the eighteenth century onwards in some jurisdictions where mutual wills are still in use, such as Germany, England, Scotland and South Africa.