Fry v Densham- Smith

A mutual-wills arrangement restricts testamentary freedom only where the testators made a prior agreement, intended to become irrevocable on the first death, and executed mutual wills pursuant to it. The agreement and execution must be proved by clear and satisfactory evidence. Direct evidence, a will, or formal instructions are not indispensable. A court may draw reasonable and probable inferences from reliable surrounding facts. Similar wills alone do not establish an agreement. Once the first testator dies, the survivor may make later wills but cannot effectively revoke the agreed dispositions.

Following their second marriage, Denny and Laura Densham-Smith each had a son from a previous marriage. Denny made a will leaving his estate to Laura and, if she predeceased him, to the two sons equally. After Denny died, Laura made three further wills which did not benefit Denny’s son, Martin.

Jonathan, Laura’s son and executor, sought a declaration that Martin had no interest in Laura’s estate. HHJ Reid QC dismissed the claim and declared that Jonathan held one half of Laura’s net estate on trust for Martin. Jonathan appealed. The central issue was whether the evidence established both an oral mutual-wills agreement and Laura’s execution of a will pursuant to it before Denny’s death.

1. Appeal dismissed unanimously. The doctrine of mutual wills has an anomalous effect because it prevents absolute testamentary gifts from taking effect according to the survivor’s later will. That consequence arises only where there was a prior agreement to make mutual wills, intended to become irrevocable on the death of the first testator, and mutual wills were executed pursuant to that agreement. Those controlling conditions were correctly identified from Birch v Curtis [2002] EWHC 1158 (Ch) and Healey v Brown [2002] EWHC 1405 (Ch).

2. The required agreement and execution must be established by clear and satisfactory evidence. Direct proof was absent: no will, copy, draft, or instructions for Laura’s alleged mutual will had been produced, and Denny’s will did not identify itself as mutual. That evidential deficiency was not decisive. A court may prove facts through reasonable and probable inferences from primary facts, undisputed events, and the surrounding circumstances.

3. The trial judge was entitled to infer both the agreement and Laura’s execution of a corresponding will. The relevant evidence included the inheritance predicament arising from the second marriage, the terms and timing of Denny’s will, the solicitor’s attendance note that Laura had made a new will after the marriage, Martin’s belief derived from Denny and Laura, and Laura’s later letter and telephone conversations. The judge had critically rejected Martin’s separate secret-trust and tripartite-agreement claims; his acceptance of the bilateral mutual-wills claim was therefore not uncritical.

4. There was no misdirection of law and no basis for saying that the findings lacked evidential support or rested on impermissible speculation. Laura was bound, after Denny’s death, to leave one half of her net estate for Martin. The declaration made below therefore stood.

• Court of Appeal (Civil Division). In [2010] EWCA Civ 1410, the court dismissed Jonathan Fry’s appeal and upheld the declaration that he held one half of Laura Densham-Smith’s net estate on trust for Martin Densham-Smith.
• Guildford County Court. HHJ Reid QC dismissed Jonathan’s claim and, on 22 February 2010, declared that one half of Laura’s net estate was held on trust for Martin absolutely.