Re Heys (deceased) [1914] P. 192
Wills – Inter-Vivos Significance – Revocability – Joint Tenancy – Severability
Facts
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.
Issues
Whether or not the husband was entitled to revoke his first will after being bound contractually not to do so.
Decision/Outcome
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.
Updated 21 March 2026
This case note broadly and accurately describes the decision in Re Heys (deceased) [1914] P 192, which remains good law on the fundamental principle that a will is always revocable as a matter of testamentary law, even where the testator has contracted not to revoke it. The contractual remedy against the estate for breach of that agreement is also correctly stated.
Readers should note, however, that the law on mutual wills and the constructive trust remedy that arises from them has been significantly developed by later cases, most notably Re Cleaver [1981] 1 WLR 939 and Olins v Walters [2008] EWCA Civ 782. Those decisions clarified the conditions under which a binding agreement not to revoke mutual wills will be recognised and the precise nature of the constructive trust imposed on the survivor. The article’s brief reference to mutual wills and severance of joint tenancy is not inaccurate, but students should be aware that this is a simplified account of a more nuanced area of law and should consult those later authorities for a fuller picture.
There have been no statutory changes that alter the core principle established in this case. The Wills Act 1837 continues to govern revocation of wills in England and Wales, and section 20 preserves a testator’s ability to revoke a will by a later will or codicil. No subsequent case has overruled Re Heys on its central holding.
