Law Report: Mutual wills upheld: Re Dale's Estate; Proctor v Dale. Chancery Division (Mr Justice Morritt), 11 February 1993

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For the doctrine of mutual wills to apply it was not necessary that the wills concerned should confer mutual benefits on the two testators. The purpose of the doctrine was to prevent the first testator to die being defrauded by the second one later changing his or her will in breach of the agreement between them, and this could happen whether the intended beneficiary was the other testator or someone else, such as a son or daughter.

Mr Justice Morritt so concluded on a preliminary issue arising in an action by the plaintiff, Joan Margaret Proctor, against the defendant, Alan Trevor Dale, concerning the estate of their mother, Mrs Monica Dale.

On 5 September 1988, Mrs Dale and their father, Norman Dale, each made a will in identical terms, bequesting all real and personal property in favour of the plaintiff and defendant in equal shares or the survivor of them, and appointed them as executors. Norman Dale died on 9 November 1988, without having altered or revoked his will. Probate was granted to the plaintiff and defendant on 24 August 1990. The estate was worth pounds 18,500.

On 14 July 1990, Monica Dale made a new will, revoking all former wills and testamentary dispositions, and appointing the defendant her executor. She bequeathed the plaintiff pounds 300 and the defendant the remainder. She died on 30 November 1990 and her will of 14 July was proved by the defendant on 30 June 1992. Her net estate was worth pounds 19,000.

The plaintiff now alleged that, in September 1988, her parents agreed with each other as to the disposition of their respective estates, that such agreement was intended by both of them to be binding and irrevocable, and that the wills of 5 September were made pursuant to and in consideration of that agreement. On Mr Dale's death, or on the grant of probate on his will, Mrs Dale became bound in equity to give effect to the agreement and to dispose of her estate pursuant to the terms of her will of 5 September 1988. She wrongfully and in breach of the agreement revoked that will and left all her estate except pounds 300 to the defendant. In consequence, the plaintiff alleged, the defendant held the real and personal estate of Mrs Dale as trustee for himself and the plaintiff in equal shares.

Charles Machin (Kidd Whitaker & Partners, Blackpool) for the plaintiff; James Bonney (Roland Robinsons & Fentons, Blackpool) for the defendant.

MR JUSTICE MORRITT said that under the doctrine of mutual wills, where two individuals had agreed as to the disposal of their property and had executed mutual wills in pursuance of the agreement, then upon the death of the first the property of the survivor, the subject matter of the agreement, was held on implied trust for the beneficiary named in the wills. The survivor might alter his will, because a will was inherently revocable, but if he did his personal representatives took the property subject to the trust.

The defendant submitted that for the doctrine to apply, the will of each testator must bequeath the other a direct personal and financial benefit. The agreement between the testators must amount to a contract at law, and without such a benefit there would be neither mutuality nor consideration. In his Lordship's judgment, the performance of the promise to make and not revoke the mutual wills in question was sufficient detriment to each testator to constitute consideration, and mutual benefit was not necessary for the purpose of the requisite contract.

It was clear from the decision of Lord Camden in Dufour v Pereira (1769) 1 Dick 419 at 420, that there must be a legally binding contract to make and not to revoke mutual wills and that the first testator to die must have performed his part of the agreement. The basis of the doctrine was that 'if the other then refuses, he is guilty of a fraud, can never unbind himself, and becomes a trustee of course. For no man shall deceive another to his prejudice. By engaging to do something that is in his power, he is made a trustee for the performance, and transmits that trust to those that claim under him.'