Charles & Ors v Fraser

The doctrine of mutual wills requires a contract between the testators that their wills, or the relevant dispositions, will remain unaltered. Reciprocal or mirror wills alone do not establish that agreement. The agreement may be oral or written and proved by extrinsic evidence, but it must be established by clear and satisfactory evidence on the balance of probabilities. Where proved, equity imposes a constructive trust over the property within the agreement. The court found that the sisters had agreed that the survivor’s estate would pass under their 1991 will and that the will would not be altered after the first death. The defendant therefore held the estate on trust to give effect to that will.

The claimants were beneficiaries under a 1991 will made by Mabel Cook, who had made reciprocal wills with her sister, Ethel Willson. Mabel died first, leaving her estate to Ethel. Ethel later executed wills in 2003 and 2006 which altered the beneficiaries and ultimately left substantially all the estate to Jill Fraser.

The claimants sought relief on the basis that the sisters had made mutual wills. The central issue was whether, when executing the 1991 wills, they had contracted that the survivor would leave the combined estates to the named beneficiaries and would not alter the relevant dispositions after the first sister’s death.

1. Mutual wills. The doctrine requires a contract between the testators that both wills will be irrevocable and remain unaltered. A common intention, expectation or desire is insufficient. Reciprocal or mirror wills do not, by themselves, imply an agreement as to revocation or non-revocation.
2. The agreement may be incorporated in the wills or proved by extrinsic evidence. It may be oral or written. The burden is on the party asserting the agreement, and it must be established by clear and satisfactory evidence on the balance of probabilities. In assessing oral evidence, the court must take account of the inherent improbability of surrendering future testamentary freedom, the possibility of sincere but inaccurate recollection, and the absence of a contemporaneous solicitor’s record.
3. The doctrine does not require the second testator to have obtained a personal financial benefit under the first testator’s will. An agreement may concern only part of the residuary estate, in which event the constructive trust is limited to that part. The remedy is equitable: the relevant property is held on constructive trust. The final will remains effective for non-dispositive matters, including the appointment of executors.
4. On the evidence, the sisters had agreed that the first to die would leave her estate to the survivor, that the survivor’s cumulative estate would pass to the specified beneficiaries in the stipulated shares, that a predeceasing beneficiary’s share would lapse and be redistributed proportionately, and that the wills would not be altered after the first death. The 2003 changes were treated as an attempt to alter only Ethel’s part, but did not displace the agreement.
5. The defendant therefore held the proceeds of Ethel’s estate on trust to give effect to her will dated 22 January 1991. The court directed that the appropriate form of order and ancillary matters should be addressed separately.

First-instance decision. The judgment does not state any prior appellate decision.