Joint Wills and Mutual Wills - Common Law Authority

Common Law Authority

The major common law authority in this area is Re Oldham Ch. 75. This discussed the 18th century case of Dufour v Pereira which first evinced the doctrine, in which Lord Camden remarked "he, that dies first, does by his death carry the agreement on his part into execution". Astbury J in Oldham distinguished mutual wills from mirror wills - that they are made in identical terms "does not go nearly far enough". There must be "an arrangement proved to the satisfaction of the court" and this must be a binding, irrevocable agreement.

In Re Cleaver 1 WLR Nourse J took a less strict approach in finding that identical wills went towards proving the existence of an agreement, however this approach was rejected in Re Goodchild 1 WLR where Carnwath J stated the importance of having specific evidence as to the testator's mutual intentions at the time of execution of the wills. Carnwath J approved the "floating trust" analogy, first proposed by Dixon J in Birmingham v Renfrew CLR, which holds that the law will give effect to the intention (to create a mutually binding will) by imposing a floating trust which becomes irrevocable after the death of the first testatot and crystallises after the death of the second.

In the Court of Appeal decision in Goodchild Legatt LJ approved the dicta of Carnwath J and added that "for the doctrine to apply there must be a contract". This approach raises problems as will be seen below. However, the contractual requirement has been rejected in other decisions, or at least diluted. Dixon J in Birmingham, commenting on Dufour v Pereira, noted that it is the trust arising from the course of conduct which is enforced, not the contract itself. This approach has received further credence in the decision of Blanchard J in Lewis v Cotton. "A formal legal contract is not needed. A contract made without formality is enough...The crucial factor must be that the terms of the mutual engagement... are sufficiently certain that the Court can see its way to enforce them." The importance of this approach is, as Blanchard J notes, that the focus is on the obligation not to deal with property contrary to the agreement rather than on non-revocation. This therefore covers situations such as that in Healey v Browne where there has been an inter vivos transfer to avoid the will.

In Healey v Browne a husband transferred assets jointly to himself and his son after the death of his wife. Although there was found to be no mutual will (Donaldson QC adopted the contractual requirement), he considered that where there was a valid mutual will the second testator is free to use the assets for his own beneficial interest as long as it is not calculated to defeat the agreement: "Where the fiduciary duty is breached by such a voluntary disposition inter vivos of the property in question, the "crystallisation" of the floating obligation must occur at the moment of that disposition." (Note that Donaldson QC imposed a secret trust in the circumstances which reduced the son's interest to 50%, that being the interest held by the husband)

In Olins v Walters 2 WLR 1 C.A. the Court of Appeal has held that although it is a necessary condition for mutual wills that there is clear and satisfactory evidence of a contract between the testators, it is a legally sufficient condition that the contract provide that, in return for one testator agreeing to make a will in a particular form and not to revoke it without notice to the other testator, the latter would also make a will in a particular form and agree not to revoke it without notice to the first testator. Once a contract of that kind is established, equity will impose on the surviving testator a constructive trust not to dispose of the property in any other way. There did not have to be more detailed terms of the contract because the remedy was not founded on specific performance of contractual obligations but upon implementation of the trust, and the intentions of the parties had only to be expressed sufficiently to lay the foundations for that equitable obligation. The case also held that, where established, the equitable obligation under the trust became immediately binding upon the surviving testator upon the death of the first and was not postponed to take effect only after the death of the second or last testator when the property, or what was left of it, came into the hands of his personal representatives.