Analysis
In 2017 a husband and wife executed mirror wills leaving their respective estates to the survivor and the residue to their four children in equal shares. In March 2019 the husband died and the wife inherited his estate. In August 2019 the wife executed a new will leaving her entire estate to one son, the defendant in the proceedings. She died 11 days afterwards. The three remaining children argued that the 2017 wills were mutual and that the wife’s estate was therefore held on trust for them equally. They relied on a conversation between the husband and wife and their solicitor where, in answer to the solicitor raising the issue that the wife could change her will after her husband’s death, the husband said he trusted his wife implicitly. The claimants also argued that the husband had acted to his detriment on his wife’s assurances that she would not revoke her will.
At first instance, the judge held that the evidence did not demonstrate a legally binding agreement that neither would revoke their 2017 wills, and that the husband was willing to rely on trust alone and did not think an agreement was needed such that there was only a moral not legal obligation. Further, proprietary estoppel could not suffice in place of an agreement in the creation of mutual wills, and the estoppel failed on the facts in any event.
The appellants appealed, arguing that the judge failed to give proper effect to the trust that the testators expressed in the other that they would abide by their agreement not to change their wills again, and that the judge had erred in finding an express agreement was necessary.
Held:
Appeal dismissed:
- (1) Mutual wills: the conclusion that there was no agreement was one which was open to the judge on the facts. There was no error of law. The judge did not say that an express agreement was required. A clear agreement was needed to establish mutual wills, whether strictly contractual or not (Goodchild v Goodchild [1997] followed). Expectation or trust was insufficient, and the evidence only established trust. The conversation with their solicitor was not an agreement but words of expectation.
- (2) Proprietary estoppel: as a matter of principle, an estoppel could operate in the context of mutual wills if the evidence was clear enough (Legg v Burton [2017] considered). Equity applied to both estoppel and mutual wills to prevent injustice. However, the claimants’ arguments on estoppel failed at the factual stage: it would have to be established that there was an appropriate representation by the wife intended to be binding and received as such that she would not revoke her will. The facts that were fatal to mutual wills were fatal to estoppel. There was no agreement as it had not been established that the parties intended to bind themselves beyond the realms of trust. There was no representation and no reliance.
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