Olins v Walters

A mutual-wills agreement requires a contract under which each party agrees to make an agreed testamentary disposition and not revoke it without the other’s agreement. Once the first party dies after performance, equity may impose a constructive trust shaped by the contract. The agreement becomes binding when the agreed testamentary documents are executed. A clause referring to disposal by mutual testamentary dispositions may sufficiently evidence an agreement not to revoke, even without express wording on revocation. A contract concerning a testamentary disposition of residue does not require compliance with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Proper execution is supported by the presumption arising from a formal attestation clause, which may be displaced only by the strongest evidence.

Andrew Olins sought probate in solemn form of the 1988 Will and the 1998 Codicil made by Freda Walters, together with a declaration that the Codicil operated as a valid mutual will binding her estate. Harold Walters challenged the validity of both instruments, denied any binding mutual-wills agreement, and counterclaimed against Andrew for negligence and breach of fiduciary duty.

The principal issues were whether the parties had made a binding agreement concerning mutual wills, whether the agreement satisfied the relevant contractual and statutory requirements, whether the Codicil had been duly executed, and whether Andrew had breached duties in preparing it.

1. Mutual-wills agreement. The court held that the irreducible core of the doctrine is a contract by which each party agrees to make a will in an agreed form and not revoke it without notice or consent. Equity may then impose a constructive trust after the first death, shaped by the contract. The agreement was reached in principle during the February 1998 discussion and became binding when the parties signed their respective testamentary documents.
2. Construction of the Codicil. The expression “mutual testamentary dispositions” referred to effective mutual wills. The word “mutual”, read with the surrounding circumstances and the explanatory letter, sufficiently conveyed that the arrangements could not be changed by the survivor. It was unnecessary for the Codicil to state expressly that the dispositions were irrevocable.
3. Section 2. Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 did not apply. The Codicil disposed of the residue after conversion of the estate into money, rather than contracting for disposition of specifically identified land. The approach in Healey v Brown was therefore distinguishable.
4. Execution and probate. The Codicil was duly executed in accordance with section 9 of the Wills Act. The formal attestation clause raised a strong presumption of regularity, supported by the honesty of one witness and the probability that Mr Walters followed clear professional advice. The contrary recollection of another witness was honest but unreliable and did not displace the presumption. The 1988 Will was republished by the Codicil.
5. Relief and counterclaim. Probate was decreed in solemn form for the 1988 Will and the Codicil. The Codicils were declared valid and effective mutual wills binding Freda Walters’s estate. The court made no determination concerning the extent to which Harold Walters’s own estate was bound. The counterclaim for negligence and breach of fiduciary duty was dismissed because advice had been given clearly and no breach or causation was established.

The judgment records that Lord Justice Rimer had commented on the mutual-wills doctrine while giving judgment on an interlocutory appeal, but no citation for that decision is stated. The present proceedings were determined at first instance.