Mutual wills: contemporary reflections on an old doctrine

Mutual wills are one of a range of solutions providing for a form of family property in common law jurisprudence. The doctrine of mutual wills also operates in support of contracts for the benefit of third parties. With the settling of the doctrine of privity in 1861, some regard the survival of mutual wills as anomalous. A close analysis of the foundation case for the doctrine, Dufour v Pereira, provides insights into the relationship between probate and equity, and common law and equity, in the late 18th century. It was a common law solution laced with arguments of the civil law. While the decision was ultimately resolved as a matter of English law, its civil law ‘shadow’ left questions hanging. In the unravelling of those issues within the common law, the developments in equitable doctrine ultimately caught up with the ‘anomaly’.