Walters v Olins

A mutual-wills arrangement requires clear and satisfactory evidence of a contract between the testators. When the first testator dies having performed that agreement by leaving an unrevoked will, equity imposes a constructive trust by operation of law upon the survivor in respect of the property affected.

The intended beneficiaries enforce an equitable obligation, not a contractual claim. It is sufficient to establish the agreement’s irreducible core. Questions about the eventual scope and practical operation of the trust ordinarily depend on construction in the relevant circumstances and do not prevent the trust from arising. A court may therefore declare that mutual wills exist without deciding unpleaded questions about the survivor’s later dealings with the property.

Husband and wife executed substantially similar codicils in 1998. Each codicil stated that it was made pursuant to an agreement for the similar disposal of their property by mutual testamentary dispositions. The wife died in 2006, leaving her will and codicil unrevoked. Her husband inherited her estate but denied that the codicils gave rise to mutual wills.

Norris J held that an agreement for mutual wills had been made and declared that the codicils bound the wife’s estate in the husband’s hands and in the hands of his personal representatives. The husband appealed. He challenged both the sufficiency of the evidence and the legal sufficiency and certainty of the agreement’s terms.

1. Appeal dismissed unanimously. Norris J was entitled, on the balance of probabilities, to find that the testators had made the agreement recorded in the codicils. The contemporaneous documents, the evidence of the solicitor-grandson who prepared them, and the absence of any contrary recollection supported that conclusion.

2. Mutual wills require clear and satisfactory evidence of a contract between the testators. The relevant obligation is equitable, for the benefit of the intended third parties, rather than a contractual claim by a beneficiary. When the first testator dies after performing the agreement by leaving an unrevoked will, equity imposes a constructive trust by operation of law. This accords with the principles summarised in Birmingham v Renfrew [1937] CLR 666.

3. The agreement’s terms were legally sufficient. The agreement established the essential undertaking that the testamentary arrangements could be changed only by agreement during the parties’ joint lives and could not be changed by the survivor. The absence of resolved answers to every question about the property affected or the survivor’s future dealings did not negate the foundation contract or prevent the constructive trust arising.

4. The trust bound the survivor immediately in relation to the deceased’s property received under the arrangement. It was not postponed until the survivor’s death and did not bind only the survivor’s personal representatives.

5. The trial judge properly confined the declaration to the validity and existence of the mutual wills. The scope and practical operation of the trust had neither been pleaded nor argued and would depend on construction of the agreement in the relevant circumstances. Consistently with Cooke v New River Co (1888) 38 Ch D 56, it was prudent not to decide unnecessary issues.

• Court of Appeal (Civil Division) — dismissed the husband’s appeal and upheld the declaration that the 1998 codicils took effect as mutual wills binding the deceased’s estate in his hands and those of his personal representatives.

• High Court, Chancery Division (Norris J) — held that the 1988 will and 1998 codicil were validly executed, found a mutual-wills contract, pronounced for the will and codicil in solemn form, and dismissed the husband’s counterclaim.