We act for T, the ex-partner of the patient V, who resides permanently in a home and is unable to communicate in any way. T and V entered into mutual (binding) wills several years ago when V was well and when their assets were relatively modest.
At no stage did T or V receive advice on the nature of mutual wills and the fact that they would not be free to revoke or vary their wills or freely dispose of their assets in their lifetime. Several years ago V's illness progressed so much that she lost capacity entirely. Following this, the shares in a company that T and V owned increased in value dramatically, with the result that their joint assets are now worth over £6 million.
T now wishes to marry and wants to provide for his new wife in the event he predeceases her. We will make an application to the Court of Protection to "sever" the mutual will arrangement and to get authority for a new statutory will for V.
The matter is complicated by the fact that V and the client own a property in France together. The French property is likely to be caught by the mutual will, but the Court of Protection will not have jurisdiction to vary the mutual will insofar as it relates to immoveable property outside England and Wales. The new Succession Regulation 650/2012 must be considered which comes into operation in August 2015.