Published: Fri, 12 Oct 2018
Re Heys (deceased)  P. 192
Wills – Inter-Vivos Significance – Revocability – Joint Tenancy – Severability
A husband wrote a will bequeathing his property to his wife. The couple divorced and the husband remarried, but upon divorce, the husband signed a binding contract with his wife promising not to revoke his first will. He wrote a second will leaving all his property to his new wife. Upon his death, his first wife sued claiming that the property was hers as he had promised not to revoke his first will, and to do so would be a breach of contract.
Whether or not the husband was entitled to revoke his first will after being bound contractually not to do so.
The will had been properly revoked and the second will, made later in time was the deceased’s proper testamentary document. Wills are, by their very nature revocable, and even a binding contract not to revoke a will cannot prevent it being revoked. Indeed, until the demise of the testator himself, the will has no legal relevance and no standing. A testator is free to change, revoke or adapt the will at any time before his death and a binding contract to prevent this will not be successful in preventing its revocation. The second will must be allowed to go to probate regardless. However, the fact that the contract to the wife was breached did allow the first wife a cause of action against the deceased’s estate for breach of contract, meaning that she was in any event able to recover. This was a form of mutual will which could be enforced as a contract. Whilst the husband and his first wife were joint tenants, the creation of mutual wills severed the joint tenancy leading to them being tenants in common.
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