Mutual Will

1. INTRODUCTION

1.1. 1.Two or more persons agree to make wills in similar terms and that the survivor will be bound to dispose of his or her estate in a specified manner. 2. Testators can make separate wills to this effect, or their wishes can be effected by a joint will.

1.2. Re Dale (1993) Facts: married couple made wills in favour of their children. Held: mutual will doctrine can apply

1.2.1. DixonJ in Brimingham v Renfrew (1937) It is long established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked.

1.3. Imposition of constructive trust on the testator cannot prevent him from revoking the will. However, if he does revoke the will, his intentions will be frustrated by the operation of the trust in favour of the beneficiaries under the mutual will.

2. CONSTRUCTIVE TRUST

2.1. must determine the death of the mutual testator as he’s carrying part of the agreement into execution

2.2. when the first of the mutual testator dies without revoking his will, the constructive trust may arise. However, this does not prevent him from disposing his property inter vivos

2.3. a gift to a beneficiary who survives the first testator but predeceases the surviving testator, does not lapse

2.4. trust would basically cover all the property of the survivor at his death unless the original agreement shows a contrary intention.

2.5. the survivor is free to do as he pleases with the property as long as he didn’t revoke his will, and if he does, the trust operates only in respect of his property at his death

2.6. Re Hagger (1930) Fact: a married couple executed a joint mutual will in which they left property to each other for life and the remainder to named beneficiaries. One of the beneficiaries, survived the wife (the first to die) but predeceased the husband. Issue: whether the beneficiary took a vested interest in the remainder when the wife died. Held: that the trust arose at the death of the wife and as such, the interests passed to the beneficiary’s estate.

3. REVOCATION DURING JOIN LIVES

3.1. if mutual will is revoked prior to the death of any one of the testator, the mutual will doctrine cannot apply as the revocation occurred before the constructive trust arise

3.2. Stone v Hoskins (1905) Fact: the wife subsequently made new wills without the knowledge of the husband. On her death, the husband argued that the courts should pronounce against the new wills, or, alternatively, that the executors of the new wills should hold the property of the testratix in trust for the beneficiaries under the mutual will. Held: the courts rejected the argument.

4. AGREEMENT

4.1. 1. Must be shown that the wills were made in pursuance of an agreement by the testators as to the disposal of their property.

4.2. 2. Agreed that the survivor was bound by the agreement.

4.3. 3. Terms must be clear and unequivocal

4.4. 4. Agreement must be intended to be legally binding.

4.5. In Re Cleaver (1981):- Nourse J emphasised that the mere simultaneity of wills and the similarity of their terms was not enough to establish the necessary agreement. These factors were however a relevant circumstance that must be taken into account. There must be clear evidence on a balance of probabilities of the necessary agreement. In this particular case, the Judge found such evidence (of an agreement), including evidence of conversations of the testators with neighbours, family and friends.

4.6. In Re Oldham (1925):- a married couple made wills on almost identical terms and at the same time, each giving property to the other absolutely with the same alternative provisions in case of the predecease of the other. The husband died first and the wife made a new will departing entirely from the original will. The courts held that there was no mutual will because there was no proof that the wills were made in pursuance of agreement not to revoke them. The fact that the two wills were made in identical terms does not necessarily connote an agreement beyond that of so making them.

4.7. In Re Goodchild (1997):- the evidence showed that the each testator, the husband and the wife, EXPECTED that the other would ensure that the couple’s son would benefit was not enough. The Court of Appeal reiterated that there must be evidence of a contractual agreement that both wills were irrevocable and due to insufficient evidence of such an agreement in this case, there is no mutual will.

4.8. In cases of doubt, the courts will lean against a finding that the agreement existed. This is because the doctrine of mutual wills constitutes a restriction on the freedom of testators to dispose of their property as they wish.