Summary

Where there was ample evidence that codicils executed by the defendant and his deceased wife satisfied the conditions for the establishment of mutual wills, the judge had been entitled to declare that they bound the deceased's estate in the hands of the defendant and his personal representatives.

Facts

The appellant (H) appealed against a decision ((2007) EWHC 3060 (Ch)) declaring that codicils executed by H and his deceased wife (D) took effect as mutual wills so as to bind D's estate in the hands of H and of his personal representatives. In 1988, H and D had each made a will. Each appointed the other and the respondent (O), who was a solicitor and one of their grandsons, as executors. After a settled legacy each left the other their entire residuary estate absolutely, or if they died together a third was left to each of their two daughters and a third to be divided between their grandchildren. In 1998, H and D made codicils, which were drafted by O. They reduced the provision for their daughters to life interests, subject to which the capital was to be divided equally amongst their grandchildren, who also took, free of any life interest, the remaining third. By the time of D's death in 2006, relations between H and O had deteriorated. O commenced proceedings to have D's 1988 will and the codicil proved in solemn form and for a declaration that D's codicil took effect as a valid and effective mutual will. The judge accepted O's evidence that, prior to drafting the codicils, O had met with H and D who had stated that after the first of them died they did not want the survivor to suffer pressure to change the testamentary arrangements, and that O should implement their intention that their respective wills could only be changed by agreement during their joint lives and could not be changed by the survivor. The judge held that a valid agreement for mutual wills had been made and granted the declaration sought by O. H contended that the evidence of a mutual wills contract was not as clear and satisfactory as required and that the judge should have concluded on the evidence that no such contract had ever been made. H further contended that the judge had failed to identify with sufficient particularity the terms of the agreement for mutual wills, and that he should not have a made a declaration that the constructive trust affected D's assets in H's hands.

Held

There was ample evidence to have entitled the judge to find as a fact that D and H had made the contract referred to in their codicils and in the circumstances described by O. That evidence was of an agreement that neither of them could change their testamentary arrangements without the consent of the other and that the survivor could not change them. (2) Mutual wills provided an instance of a trust arising by operation of law to give effect to the express intention of the two testators. It was a legally necessary condition of mutual wills that there was clear and satisfactory evidence of a contract between them. It was a legally sufficient condition to establish that in return for the first testator agreeing to make a will in a certain form and not to revoke it without notice to the second testator, then the second testator would make a will in a certain form and agree not to revoke it without notice to the first testator. If such facts were established then upon the death of the first testator equity would impose upon the second a form of constructive trust shaped by the exact terms of the contract that had been made. The constructive trust was imposed because the first testator had made a disposition of property on the faith of the second testator's promise to make a certain will, and with the object of preventing the first testator from being defrauded. In the instant case, the intentions of H and D had been sufficiently expressed in the agreement to lay the foundations for the equitable obligations that bound H's conscience, as the survivor, in relation to D's estate. The judge had been correct to declare that the trust was immediately binding on H in relation to D's property in his hands.

Appeal dismissed