McLean & ors v McLean [2023] WTLR 267

Analysis

The claimants were all siblings and the biological children of Reginald McLean (Reginald), by his first marriage. The defendant was the biological child of Reginald and his second wife, Maureen (the deceased).

By mirror wills executed on 23 June 2017, Reginald and the deceased both left their estates to each other as survivors, and the residuary estate of the surviving spouse to the claimants and the defendant in equal shares (the 2017 wills). Following Reginald’s death, the deceased executed a new will on 16 August 2019 (the 2019 will) revoking her 2017 will and leaving her entire estate to the defendant. The deceased died on 27 August 2019.

The claimants alleged that the 2017 wills were mutual wills and sought to rely on the equitable doctrine, claiming a declaration that the deceased’s estate was held on trust for the benefit of the claimants and the defendant in equal shares in accordance with the terms of the 2017 wills. The claimants also sought directions for the sale of the property which formed the bulk of the estate together with damages for its occupation and use. The defendant denied that the 2017 wills were mutual wills, alleging they were mirror wills only. The defendant alleged further that the 2017 wills were invalid on the grounds that Reginald lacked testamentary capacity or knowledge and approval, and that the deceased had signed hers under undue influence. The defence also raised the point that the 2017 will referred to property or land, such that it was a disposition of land to which s2 of the Law of Property (Miscellaneous Provisions) Act 1989 applied.

The court had to determine the following issues:

1. (1) whether the 2017 will made by Reginald was invalid owing to lack of testamentary capacity, or want of knowledge and approval (the capacity issue);
2. (2) whether the deceased’s 2017 will was invalid by reason of undue influence (the undue influence issue); and
3. (3) whether the doctrine of mutual wills operated to prevent the deceased from revoking her 2017 will (the mutual wills issue): in particular, whether there was a legally binding agreement between Reginald and the deceased not to revoke the 2017 wills.

Held (dismissing the claim):

The Recorder considered the relevant authorities and legal test for testamentary capacity and observed that the burden of proof on the capacity issue was initially on the claimants as propounders of the 2017 wills, but the burden shifted to the defendant if the Recorder was satisfied that the will was duly executed and appeared rational on its face. The question then was whether the Recorder was satisfied that the defendant had raised a ‘real doubt’ about capacity, which he must then prove on the balance of probabilities. If he succeeded then the burden shifted back to the claimants. The question of capacity was a question for the court, which must be satisfied that there was cogent evidence of a lack of capacity. There was a distinction between capacity on one hand and knowledge and approval on the other. The latter involved ascertaining whether the will represented the testator’s true intention.

In the Recorder’s judgement the defendant had not discharged the burden of proving that there was ‘real doubt’ about Reginald’s capacity or that he did not understand its terms. The Recorder was satisfied that Reginald did have capacity and did understand the terms of the 2017 will and he rejected the submission it was invalid.

The Recorder adopted Lewison J’s helpful summary in Re Edwards [2007] at para 47 of the approach to be taken in cases of undue influence. He held that the evidence did not support a finding that the deceased’s or Reginald’s 2017 will had been procured by undue influence.

The Recorder went on to consider the authorities on the doctrine of mutual wills. The Recorder was unable to find any support for the suggestion that proprietary estoppel alone was sufficient to engage the doctrine of mutual wills in the authorities, which were clear that a ‘legally binding agreement’ means nothing less than a contract, and not a proprietary estoppel.

In the Recorder’s judgment the authorities established the following propositions (para [82]):

1. (1) Mutual wills are wills made by two or more persons, usually in substantially the same terms and conferring reciprocal benefits, following an agreement between them to make such wills and not revoke them without the consent of the other.
2. (2) For the doctrine to apply, there has to be what amounts to a contract between the two testators that both wills will be irrevocable and remain unaltered. A common intention, expectation or desire is not enough, nor is a proprietary estoppel (Re Goodchild [1997], Re Cleaver [1981], Charles v Fraser [2010]).
3. (3) The mere execution of mirror or reciprocal wills does not imply any agreement either as to revocation or non-revocation (Re Goodchild, Re Cleaver).
4. (4) For the doctrine to apply, it is not necessary that the second testator should have obtained a personal financial benefit under the will of the first testator (Re Dale [1994]).
5. (5) The agreement may be incorporated into the will, or proved by extraneous evidence. It may be oral or in writing.
6. (6) The agreement must be established by clear and satisfactory evidence on the balance of probabilities (Re Goodchild, Re Cleaver).
7. (7) The agreement is enforced in equity by the imposition of a constructive trust on the property which is the subject matter of the agreement (Re Cleaver). The beneficiaries under the will that was not to be revoked may apply to the court for an order that the estate is held on trust to give effect to the provisions of the old will.
8. (8) The action relates only to the dispositive part of the will. The new will is fully effective to deal with non-dispositive matters, such as the appointment of executors. Where the doctrine of mutual wills applies, the executors appointed under the final will hold the assets of the estate on trust to give effect to the earlier will.
9. (9) An agreement for the gift of the residue of an estate (which happens to include real property), as opposed to a gift of a particular interest in land, is not void under s2 of the 1989 Act if not made in writing.

The Recorder found that the evidence did not demonstrate that there was a legally binding agreement, akin to a contract, between the deceased and Reginald that neither of them would revoke the 2017 wills without the consent of the other. Reginald placed a moral and not a legally binding obligation on the deceased. Without a reciprocal agreement amounting to a contract between the two testators that both wills would be irrevocable and remain unaltered, the doctrine of mutual wills did not apply (Charles at para 59). The 2017 wills were made on the basis of the parties’ trust in each other, which was no more than a moral obligation. The deceased may have been morally bound but was not legally bound and was therefore legally entitled to change her 2017 will and make the 2019 will.

The Recorder also found that the authorities did not support the engagement of the doctrine of mutual wills based on a proprietary estoppel since it seemed the element of reliance was missing.

The claimant’s claim therefore failed.

JUDGMENT MR RECORDER ROBERTSON: Introduction [1] This is my judgment following the trial of a claim brought by Mr Ian McLean, Mr Sean McLean and Ms Lorraine Pomroy against Mr Brett McLean. I intend no disrespect to any of the parties or the testators, but due to the fact that they all (save for Ms …

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