Legg & Anor v Burton & Ors

The equitable doctrine of mutual wills requires proof, on the balance of probabilities, of a legally binding agreement that the wills would be made in an agreed form and would not be revoked or altered without the agreed protection for the other party. Mirror wills alone are insufficient. The agreement may be established by direct or circumstantial evidence. An oral promise may also found a proprietary estoppel capable of producing equivalent equitable relief, including where land is involved. The court should assess inherent improbability in the particular circumstances and should not treat mutual wills as inherently improbable in every case. Subsequent inconsistent wills do not of themselves displace the equitable obligation. The survivor’s estate may therefore be held on constructive trust to give effect to the original arrangement.

June Clark and her husband, Bernard Clark, executed mirror wills on 25 July 2000. Each left the estate to the survivor absolutely, with the residue ultimately passing equally to their two daughters. Bernard died in 2001 without changing his will. June later executed numerous wills, culminating in a 2014 will which substantially favoured her grandchildren and their associates.

The daughters sought a declaration that June’s estate was held on trust under the doctrine of mutual wills. The defendants denied any binding agreement and relied, among other matters, on the wording of the 2000 will and the later wills. The central issue was whether the evidence established an enforceable agreement or promise not to revoke or alter the 2000 wills.

1. Claim allowed. The court held that Bernard and June had expressly promised each other that the wills made on 25 July 2000 would not be revoked or changed without notice to the other. June’s personal representatives were therefore required to hold her estate on trust to give effect to the 2000 will.
2. The essential elements of mutual wills were established on the balance of probabilities: a legally binding agreement concerning the form of the wills, an agreement not to revoke or alter them without the required notice, execution of the wills in that form, and the death of the first testator without revocation or relevant notice.
3. Mirror wills and corresponding dispositions are insufficient by themselves. The standard wording giving the survivor property absolutely and beneficially did not exclude a mutual-wills obligation arising outside the will.
4. The agreement could be proved by direct evidence or reasonable inferences from extrinsic evidence. The daughters’ evidence was supported by the circumstances of the will-making, the family’s purpose in acquiring the house, and a 2004 incident in which June accepted that she had promised not to change her will.
5. The ordinary civil standard applied. References to a heavy burden or clear and satisfactory evidence concerned the cogency required where the alleged agreement was inherently improbable, not a different standard of proof.
6. The court rejected the proposition that mutual wills are inherently improbable. The significance of such an arrangement depends on the particular circumstances, including the testators’ objectives, age, advice, property arrangements and the agreed limits on future changes.
7. An oral agreement may operate through proprietary estoppel as well as contract. The court considered that this avoided an arbitrary distinction between gifts of land and gifts of residue, although the point did not strictly arise because the will dealt with residuary estate.
8. The constructive trust normally arose on the survivor’s death, in relation to property then remaining and to the extent that the survivor’s later testamentary disposition was inconsistent with the original agreement. No wider questions concerning dealings during the survivor’s lifetime required determination.

First-instance judgment. No earlier decision in the same proceedings is stated.