NEUTRAL CITATION NUMBER [2002] EWHC 1158 (Ch)
IN THE SUPREME COURT OF JUDICATURE
CHANCERY DIVISION
MR JUSTICE RIMER
14th June 2002
Reziya Harrison (instructed by Atkins Hope) for the claimants.
Simon Redmayne (instructed by Butcher Andrews) for the first and second defendants.
The third and fourth defendants did not appear and were not represented.
1. This is a family dispute. For the purposes of brevity, I will refer to certain of the individuals involved by their first names, as was done at the trial. In doing so, I of course intend no disrespect to anyone.
2. The four claimants are the children of Penelope Howe deceased (“Penny’), who died on 4 May 1986, and of her second husband, Clive Birch. They are James Birch, Simon Birch (usually known as Richard, his second name), Caroline Birch and Emma Richards. Penny’s third husband was Dr Philip Howe (“Philip”), who died on 9 October 1999, and she was his second wife. The first defendant is Michael Curtis, a partner in Butcher Andrews, solicitors, and an executor named in Philip’s last will dated 14 June 1995. The second defendant is Jacqueline Howe (“Jacqueline”), Philip’s third wife and the co-executor and main beneficiary of his 1995 will. The third and fourth defendants are Jane Clark and Sarah Howe, Philip’s two children by his first wife Rosemary (in fact, Jane was adopted).
3. Penny made her last will on 14 February 1986, and Philip made a will shortly afterwards, on 24 February 1986. The claimants’ primary case is that the doctrine of “mutual wills” applies to those wills, which they say were made pursuant to an agreement Penny and Philip made in early 1986. Philip’s 1986 will is said to reflect that agreement. He later made three wills, the last being his 1995 one, whose terms, it is said, departed from that agreement. The claimants’ case is that he was not at liberty to do so, and that the effect of the applicable doctrine is that his estate should be distributed by the executors named in the 1995 will (the first two defendants) in accordance with the terms of his 1986 will. If they are right, Philip’s residuary estate falls to be distributed in equal shares between the four claimants and the third and fourth defendants. In addition, the claimants say that certain lifetime gifts that Philip made should be set aside and their subject matter distributed as part of his residuary estate. The gifts are a disposition of part of the net proceeds of sale of his and Penny’s former matrimonial home which was used to buy a property in Norfolk in his and Jacqueline’s joint names, a property which accrued to Jacqueline by survivorship on Philip’s death; and a gift by Philip to Jacqueline of £40,000 in bonds. It is said that these transactions also involved a breach of the “mutual wills” agreement. The proposition is that, as from Penny’s death, the whole of Philip’s estate became impressed with a trust requiring him to ensure that it devolved in accordance with his 1986 will and precluding him from making these gifts. The claimants argue alternatively that, even if the mutual wills doctrine is not applicable, Philip became estopped from departing from the terms of his 1986 will or making these gifts.
4. Mrs Reziya Harrison represented the claimants. Mr Simon Redmayne represented the first and second defendants. It would, I think, be fair to say that Mr Redmayne’s primary client is Jacqueline, who is the main beneficiary under Philip’s 1995 will and seeks to defend her claims as such. The third and fourth defendants, Philip’s two children, were not represented although they were served with the proceedings and know all about them. The claim is not adverse to them: if the claimants succeed, it will also be for the financial benefit of those defendants. Sarah Howe gave evidence, although Jane Clark did not. Sarah Howe’s evidence was not supportive of the claimants’ case, but was also largely irrelevant to the issues I have to decide.
5. Penny was born on 6 August 1935. She was one of the six children of Anthony Harman. She married her first husband, Alan Finch, in 1956. They had two children, Richard (the second claimant), born in 1957, and Caroline (the third claimant), born in 1959. They divorced in 1961 on the grounds of Mr Finch’s adultery and the decree absolute was dated 3 October 1961.
6. Penny’s second marriage was with Clive Birch. They married on 10 November 1961. Mr Birch adopted Richard and Caroline and he and Penny had two more children, James (the first claimant), born in 1962, and Emma (the fourth claimant), born in 1964. Emma and Richard both gave evidence.
7. According to Emma, Penny’s second marriage had, by the 1970s, become a very unhappy one. Penny and her husband separated in about 1978. The matrimonial home was sold. Richard, James and Emma were still living there at the time. There was a divorce, with a decree absolute on 11 December 1979, and Penny bought a house at 15 Hazelwood Close, Chesham, Buckinghamshire, with her share of the divorce settlement. The three children moved in with their mother.
8. By 1978, Penny had formed a relationship with Philip. She was a midwife and he was a doctor with a practice in Chesham. Philip was about 51 and had married his first wife, Rosemary, in 1950. He left Rosemary and moved into Hazelwood Close with Penny in late 1978 or early 1979. Emma’s evidence is that he brought minimal furniture with him. She said that the new relationship was a success, that the family atmosphere was much happier than the old one and that she became close to Philip. She regarded him as a father and he regarded her as a daughter. Daniel Harman, Penny’s brother, also gave evidence that the relationship between Penny and Philip was a very happy and loving one. Nobody suggested otherwise and I accept that it was.
9. In about 1980, Penny sold Hazelwood Close for about £65,000 and purchased Fullers Hill House, Chesham. (“Fullers Hill’). The price was about £90,000. Penny provided the bulk of it, out of the proceeds of Hazelwood Close, but Philip provided about £25,000, and a small sum was also raised by a mortgage on which £7,592.96 was outstanding on Penny’s death in 1986. Philip serviced the mortgage. The family moved into Fullers Hill.
10. On 4 February 1982, a decree nisi of divorce was pronounced in respect of Philip and Rosemary’s marriage, and the decree absolute was dated 19 May 1982. The divorce had been a contentious one. Philip and Penny married on 22 June 1982. He was 55 and she was 46. Emma and James were still living at Fullers Hill.
11. In about 1980, Penny had been diagnosed to be suffering from cervical cancer. She was treated, it was thought successfully. But in 1985 she began to suffer from pains. She went into hospital in January 1986 for an exploratory operation. She was told that the cancer had returned, had spread and was untreatable and that she had only a short time to live. It was unlikely that she would survive until the summer. Everyone knew this, Penny included, who prepared herself for her impending death. Her son James brought forward his marriage to April 1986, so that she could attend it. Penny’s brother, Daniel, spoke of what a devastating time it was for the family, particularly for Philip. I have no hesitation in accepting that.
12. Penny made three wills, on 29 December 1978, 15 September 1982 and then her last one on 14 February 1986.
13. The 1978 will was made following her separation from Clive Birch. It appointed two solicitors, Mr Tilley and Mr O’Flynn, as executors. By clause 4, Penny gave a necklet to Caroline, by clause 5 she gave an eternity ring to Emma and by clause 6 she gave the rest of her personal chattels and furniture to her four children in equal shares. Clause 7 left her residue to the four children at 21, with substitutional gifts in favour of issue.
14. By the time of the 1982 will, which revoked the 1978 one, Penny had been married to Philip for three months and Fullers Hill was the new family home. She appointed Mr Tilley and Mr Breadly, a legal executive, as executors. By clause 4, she gave a necklet and earrings to Caroline and by clause 5 she gave her other jewellery to Emma. By clause 6, she gave Fullers Hill and its furniture (save certain items) to her trustees upon trust for Philip for life, until remarriage or until he should indicate he no longer required its use. He was to insure it and pay the outgoings. Subject to Philip’s interest, Penelope gave Fullers Hill to her trustees on trust for sale for her four children and Philip’s two children in equal shares; and she gave its furniture to her four children in equal shares. By clause 7, she gave the rest of her personal chattels to her four children in equal shares. Although Penny may not have understood it, the effect of the disposition of Fullers Hill to Philip for life was probably to create a settlement for the purposes of the Settled Land Act 1925. Had this been Penny’s last will, Philip could have required Fullers Hill to be vested in him by a vesting assent and he would have been entitled to sell it and replace it with another house for his occupation.
15. Before coming to the wills Penny and Philip made in February 1986, I must review the evidence relating to their making, which is central to the case.
16. Emma was at Leeds University at the time - she was just 22 - but came home most weekends to visit Penny. She said it was during one of these visits that Penny first told her what she had agreed with Philip about the house. In her witness statement, she said that Penny told her that Philip had suggested that she (Penny) should leave Fullers Hill and its contents to him in her will, on the understanding that he and the two resident children would continue to live there as a family after her death. In turn, Philip was to leave all his estate, including Fullers Hill and its contents, to Penny’s four children (the claimants) and to his two children by Rosemary (the third and fourth defendants). His argument was, as Penny told Emma, that he would thereby get a house to live in and the claimants would ultimately get a share in a larger “pot” than if Fullers Hill and its contents had been left to them by Penny.
17. Emma said there was, however, a qualification to the arrangement, namely that Penny wanted to leave certain specific items of sentimental value to her four children, just as Philip wanted to do likewise to his two children. As to the former items, Emma said that the agreement was that these were to be held by the four claimants on trust for Philip to use during his lifetime. Emma said that Penny also told her that her shares in the family building company, Harman (Chesham) Limited (“Harmans”), were also to go direct to her four children. Penelope had a holding representing about 4% of Harmans’ issued shares. The majority shareholder was her brother Andrew.
18. In cross-examination, Emma was consistent about what she said the agreement had been, although she said it came up in more that one conversation. She also pointed out that Penny did not refer to the specific gifts she wanted to give her children as being items of sentimental value, she identified specifically which items she intended to give to which child. She was unable to say that, by 1986, Penny and Philip had excluded the possibility that he might marry again: Penny did not discuss that with her. She accepted that Penny’s and Philip’s 1986 wills accorded with her understanding of the agreement they had made.
19. Daniel Harman gave evidence to similar effect. He said in his witness statement that Penny told him from her sick bed that she had an agreement with Philip. She told him that she was the sole owner of Fullers Hill and that, subject to minor bequests, she was going to leave it and its contents to Philip. In return, Philip was to leave his entire estate equally between her four children and his two children. She explained to him that the principal reason for this was that Philip would be in financial difficulty if Fullers Hill was sold for the benefit of her children. In his oral evidence in chief, Daniel departed from this slightly, saying that his clear recollection was that Penny had told him that she would leave her estate principally to Philip, although he explained that in cross-examination by saying that he understood that Fullers Hill and its contents represented the bulk of her estate. He said he thought this discussion was probably in the last week of January 1986, or the first week of February. Daniel said that, during a meeting with Philip in August 1986, Philip confirmed the agreement and said it was expressed in a will he had made.
20. Hannah Brown, Penny’s sister, spent several weeks with her in the spring of 1986. She too said that on more than one occasion Penny told her that she had left her house to Philip on the understanding that he would in turn leave his whole estate to her four and his two children. Hannah said that Philip was present when she said this, but that “as was typical for him, he made no comment.” She said he was a very quiet person. She said that Penny explained that the reason for leaving Philip the house was because she did not want him to have to move. She agreed that Penny would not have rejected the thought that Philip might remarry. On the contrary, she said that she wanted him to find someone who loved him as much as she did.
21. Richard also gave an account of what Penny told him about her arrangement with Philip. If differed somewhat from Hannah’s. Whereas her evidence was that Penny had told her that she was giving Philip the house because she did not want him to have to move, Richard’s evidence is that she told him that she was giving him the house precisely so that, if he wanted to, he could move. This was because Philip apparently believed that, under the life interest given to him by Penny’s 1982 will, he would be tied forever to Fullers Hill, and would not be entitled to have it replaced by an alternative house, whereas he had thoughts about moving to Lymington. Thus, said Richard, Philip had asked Penny to leave him Fullers Hill outright so that he would have a freedom of choice. Richard said that Penny could see Philip’s point of view, and so she came to an arrangement with him by which she would leave him the house and he would leave his entire estate to the six children. Richard said in re-examination that Penny would have been happy at the thought that Philip might remarry.
22. Penny made her last will on 14 February 1986. She revoked all her former wills. She appointed Daniel and Philip as her sole executors. By clause 4.1, she gave six chattels to Philip for life, with remainder (as to each) to one or other of her four children and two grandchildren. By clause 5, she gave “my property known as Fullers Hill” and its contents (apart from the clause 4.1 items) to Philip absolutely. By clauses 6.1 and 7 she gave her shares in Harmans and her residuary estate to her four children in equal shares. The will was witnessed by Hannah and by Hannah’s daughter, Emily. It had been drafted by Iliffes, solicitors.
23. Philip made a will on 24 February 1986. He appointed Paul Smith, a solicitor with Richardson Smith & Co (“Richardsons”), and Richard to be his executors. By clause 3, he gave various chattels to his two daughters. By clause 4, he gave his residuary estate in equal shares to his two daughters and to Penny’s four children, with substitutional gifts in favour of issue.
24. Philip’s will was drafted by Nicholas Whelan, an assistant solicitor with Richardsons. He had had a meeting with Philip on 7 February 1986, of which he made a note. He could not recall what was said at the meeting otherwise than by reference to the note. It starts by saying that “[Penny] is going to leave house to [Philip]. He will then leave it to his 2 children and her 4 children, ie everything to go between 6 children including surgery/laundrette; all six are over 2l.” The six children are then listed as the residuary beneficiaries, and there is a note that their shares were to go “to issue if appropriate.” Under a heading “specific legacies”, Mr Whelan listed the clause 3 gifts. The note concluded as follows: “discussed possibility of [Philip] dying before [Penny] - but does not cover this eventuality. [Philip] appreciated this, but the state of [Penny’s] health is reason for the new will.”
25. Mr Whelan agreed in cross-examination that it is common for spouses to make reciprocal, or corresponding, wills and that each spouse will be aware of that. He agreed that such wills are invariably the result of an arrangement between the spouses. He also agreed that, whilst the spouses will also ordinarily have an expectation that the scheme of their wills will be adhered to by the survivor, it does not automatically follow that the survivor, will be obliged to adhere to it. He said further that if he thought in any particular case that the survivor was to be under such an obligation, he would give advice to that effect at the time the wills were made. He understood there had been an arrangement with Penny as to the making of the wills (although Richardsons did not act for Penny), but said that, had he thought that Philip would be obliged to adhere to it and could not subsequently revoke his will, he would have made a note to that effect.
26. Richard was one of Philip’s named executors, and Philip showed him his 1986 will. Although Richard’s evidence is that he had been told that Philip’s arrangement with Penny was that he would leave his entire estate to the six children, he does not appear to have reacted with any surprise to clause 3, by which Philip left various chattels to his two daughters. If his evidence as to his mother’s arrangement is to be taken at face value, Philip breached it immediately and Richard knew it.
27. Daniel and Philip obtained probate of Penny’s 1986 will on 20 August 1986. They extracted it in person. Her gross estate was £157,625, and her net estate £152,351. The inland revenue account shows that the net figure was arrived at after deducting £719 funeral expenses and £4,555 which was treated as her share of the mortgage liability on Fullers Hill. Fullers Hill was valued for probate at £150,000, and Penny was treated as having a 60% share in it, worth £90,000. Philip claimed to be entitled to the remaining 40%. The remaining assets were valued at £67,625.56, largely represented by Penny’s tiny shareholding in Harmans, valued at £44,000, a proportionate share of the asset value attributed to Harmans by Andrew Harman, its controlling shareholder (much later, in 1997, Harmans was sold for a mere £40,000). The inland revenue account records that Penny had made lifetime gifts totalling £19,350 in March and April 1986 to her four children and to Daniel.
28. I have my doubts whether the inland revenue account was correct in treating Penny as having only a 60% interest in Fullers Hill. Fullers Hill had been bought in her sole name. It may be that Philip did provide about £25,000 towards the purchase and also assumed the burden of servicing the mortgage. But in a letter he wrote on 12 July 1986, he said that the reason it had been bought in Penny’s sole name was because I had been divorced and we wished to avoid any claim by my ex-wife on my late wife’s estate should I have died first.” In other words, in such event he wanted Penny to be able to assert to Rosemary that Fullers Hill was her sole property and that he had had no interest in it. I decline to believe that this was a dishonest conspiracy between Penny and Philip to lie to Rosemary - which it would be if the intention was that Philip should have a beneficial interest in Fullers Hill. The inference I would draw is that, in putting the house in Penny’s sole name, the two of them were agreeing that it was to be her sole property and that Philip’s contribution to the purchase was a gift to her. Indeed, the latter is precisely what Philip’s solicitors told Rosemary’s solicitors in a letter of 21 April 1981. I presume that was true, and that it reflected Philip’s instructions and then intentions. If so, it was not open to Philip on Penny’s death to deny the gift and claim that he had had a beneficial interest in Fullers Hill from the outset. Emma’s evidence was that Penny regarded Fullers Hill as her house, and Penny’s 1986 will was consistent with that. If she had regarded herself as having merely a share in it, she would not have purported to give Philip “my property known as Fullers Hill ... “. She would only have given him her share in it. Daniel said he almost certainly saw Philip’s July 1986 letter when he and Philip were obtaining probate, but it does not appear to have struck a chord with him. His attitude was that, as the entirety of Fullers Hill was ultimately to be divided between the six children, it made no difference what shares Penny and Philip may respectively have had in it.
29. Following Penny’s death on 4 May 1986, Emma stayed on close terms with Philip. He came to her graduation ceremony in July 1986 and she continued to live at Fullers Hill.
30. Philip met Jacqueline in about 1987 and introduced her to Emma. Jacqueline was about 41, had been married twice and her second marriage was in serious difficulties. She and her husband were living in a flat she owned, but were in the process of a divorce and they lived separate lives. She said her husband was a compulsive gambler and was subjecting her to mental cruelty. She was a development director of a housing association, earning at that stage about £25,000 a year. Philip was earning about the same - he was by then only working part-time.
31. Philip invited Jacqueline to move into Fullers Hill, which Emma says was originally only to be on a temporary basis, although Jacqueline said it was not. This understandably caused a degree of upset to Emma, and Jacqueline sensed that Emma was furious when she moved in. Philip and Jacqueline commenced a sexual relationship within about a week, and Jacqueline moved into Penny’s former bedroom. This, again understandably, heightened Emma’s upset. Emma’s evidence was that she had a civilised, but not warm, relationship with Jacqueline, whereas Jacqueline’s evidence was that the relationship was distinctly chilly. Occasionally Jacqueline’s two children would come and stay at Fullers Hill. Emma moved out of Fullers Hill in 1988 when she married, although she would often visit Philip there, whom she said became a good and loving grandfather to her own daughter.
32. Jacqueline, and her second husband divorced in 1988. In the same year, she also sold her flat. After making a payment to her former husband, she was left with about £5,000 out of the net proceeds. From then on, she regarded Fullers Hill as her home.
33. Daniel said that in either 1988 or 1989 - he believed it was harvest time -Richard approached him and said he was concerned about the impact that Philip’s relationship with Jacqueline might have on the four children’s inheritance. Daniel said he spoke to Philip. Daniel disclaimed any ability to recall either his or Philip’s exact words, but said the effect of the latter was that Philip’s will remained unchanged.
34. Philip and Jacqueline married on 27 December 1990. He was 63 and she 44. In 1991, as I find (although there was some uncertainty about the date), Hannah (Penny’s sister, who lived in Alabama) wrote to Philip. The letter is quite an important one from the claimants’ viewpoint, but neither it nor any copy is in evidence, and there is a dispute as to what it said. Hannah did not keep a copy and was initially not very sure when she wrote it, although she accepted in cross-examination that it was probably in 1991, after Philip and Jacqueline had married. She said she wrote something to the effect that she understood Philip’s circumstances had changed and she wanted to remind him of his promise to Penny’s children, which Hannah said she believed included Penny’s house and car (although I comment that nobody else had mentioned anything about a car).
35. Emma said that she knew of the letter and that she understood that it reminded Philip of his agreement with Penny with regard to the disposal of his estate. She did not recall seeing it, but said she may have done. She says that she knew Jacqueline knew of it, and Jacqueline admits she read it. Jacqueline confirmed that it was written after she and Philip were married, and she says she helped Philip draft a reply to it, although in the event he did not send one. She said that it was written on a side and a half of A5, and that its message was that Hannah had been contacted by Penny’s children, who were concerned that they would lose track of the items in the family home they had grown up with. She said it made no mention of any agreement between Penny and Philip as to the disposal of his estate when he died. Hannah was asking for Philip’s reassurance that Penny’s wishes in her will as to the family items would be carried out. Jacqueline said Philip was angry at the implication he would not observe Penny’s wishes with regard to them. She said he had told her nothing of any arrangement to split his estate six ways on his death.
36. Emma says that she had a discussion with Jacqueline at about this time, brought about because Jacqueline wanted to discuss how upset Philip was by Hannah’s letter. Emma said in her witness statement that she recalled telling Jacqueline “the details of the agreement reached between my mother and Philip,” and in cross-examination she elaborated that by saying that Penny had left Philip Fullers Hill on the basis that he would leave his estate to the six children. She had said in her witness statement that:
I recall that I made it clear to Jackie that we loved Philip and were more than happy for him to have the use of [Fullers Hill] for as long as he lived but that we would want the house to be sold and the proceeds and contents distributed after his death. In other words, we would not wish for Jackie to continue living in the house after Philip’s death.
37. Jacqueline denies that particular meeting or discussion, but admits to (although Emma denies) a meeting and conversation touching on this subject with Emma in about 1988 or 1989 (before the marriage). This was when she and Philip were considering buying a place of their own together. She said she went to view a house at Lee Common, Buckinghamshire, and that (to her surprise) Emma went with her. Emma asked her how she and Philip would finance the purchase. Jacqueline replied that Philip would put up half the capital for the purchase (out of the proceeds of Fullers Hill) and Jacqueline would borrow the other half on mortgage. Emma replied that this was unfair, as Penny’s money was in Fullers Hill. Jacqueline did not know what Emma meant, because she said she knew nothing about Philip’s finances at that stage, but the conversation ended with Emma’s assertion that her brothers would fight her for the house. Jacqueline asked Philip what Emma had been talking about and he explained that Penny’s children had always laboured under a misunderstanding as to how Fullers Hill had been bought. They believed that Penny had paid the mortgage on it, whereas he had paid it from the start. He said that the mortgage offer had been to both of them, but that it had been bought in her sole name because his divorce affairs with Rosemary had not been concluded. Jacqueline said this seemed to be a reasonable explanation for Emma’s behaviour and she did not question him about it further, although she accepted in cross-examination that she knew that Penny had provided part of the purchase price for Fullers Hill. In the event, Philip and Jacqueline decided not to buy a house in Buckinghamshire: Philip wanted to retire early, and Jacqueline did not want to take on a mortgage at that stage in her life.
38. Reverting to 1991, it is clear that Philip was angered and upset by Hannah’s letter, whatever it said. His response to it - which was consistent with Jacqueline’s account of its contents - was to write notes to certain of Penny’s children (not, apparently, including Emma, although Jacqueline said Philip told her he had spoken to her on the telephone) telling them he proposed to make an immediate distribution to them of the items specified in clause 4.1 of Penny’s 1986 will in which he was given a life interest. He said he would put them in the garage where they could be collected. One of the notes was to Richard, but Richard said in evidence that he did not read it himself: his wife told him about it, after which he went and collected the items.
39. Emma said that at about this time she also went to see Philip and reassured him that she and her siblings had no doubt about his intention to abide by the agreement with Penny, but were concerned “regarding the effect of his cohabitation with Jackie.” That choice of language suggests that Emma regards the discussion as pre-dating Philip’s marriage to Jacqueline, whereas I find that Hannah’s letter was written afterwards. She said this seemed to reassure him. She said in cross-examination that Philip also acknowledged the agreement he had made with Penny in 1986 with regard to the disposition of his estate. She denied that all he had acknowledged was his limited interest in the clause 4.1 items. Emma moved to the USA in May 1991 and stayed there until September 1994, returning to England about twice a year.
40. On 23 August 1991, the same year that Emma claimed that Philip had given her the acknowledgement just mentioned, he made a new will. It was prepared by Richardsons, as was his 1986 will. It revoked his former wills. It appointed Jacqueline and the senior partner of Richardsons as executors. By clause 4, Philip gave certain chattels to each of his two daughters. By clause 5, he gave legacies of £10,000 each to the six children. By clause 6, he gave his residue to Jacqueline, with a substitutional gift in favour of his two children. If Philip had indeed made the alleged agreement with Penny and had confirmed it earlier in the year, his new will reflected a decision to depart from it. Richard’s evidence was that, in about 1992, he bumped into Philip one day and expressed his sorrow that Philip had taken umbrage over Hannah’s letter. He said that Philip expressed his disappointment that Penny’s children doubted his intentions with regard to the agreement he had made with her.
41. Philip retired in 1992. In July 1992, he sold Fullers Hill. The net proceeds amounted to £180,608. He used £145,000 of them to buy Mill Farm House, Hindringham, Norfolk (“Mill Farm’). Philip persuaded Jacqueline to give up her job and they moved to Mill Farm. He assured her he would support her. She said Philip said nothing to her about his money being allegedly tied up in promises made to Penny in favour of her children. She said in re-examination that she would not have moved to Norfolk and given up her career if she had known that the claimants would bring this action. I interpret that as also meaning that she would not have done either of these things if she had known of facts which might entitle them to bring it.
42. Mill Farm was bought in Philip’s and Jacqueline’s names as beneficial joint tenants. The effect of that was that, when Philip died in 1999 his interest in Mill Farm accrued to Jacqueline by survivorship and no part of it devolved with his estate. The balance of the net proceeds of Fullers Hill amounted to about £30,000, which was paid to Philip. He later gave £40,000 to Jacqueline in bonds.
43. On 29 September 1992, Philip made another will. It was prepared by Norfolk solicitors, Butcher Andrews. It revoked his former wills. By it, Philip appointed Jacqueline and a partner in Butcher Andrews as executors. By clause 5, he gave his two daughters the same items as he had in clause 4 of his 1991 will, subject to their allowing Jacqueline the use of them for life. By clause 6, he gave legacies of £5,000 to each of the claimants and of £10,000 to each of his two daughters. By clause 7, he gave his residue to Jacqueline, with a substitutional gift in favour of his two children and her two children (Patrick and Victoria Goulden) in equal shares. That will also represented a departure from the terms of the alleged agreement with Penelope.
44. Philip’s last will was dated 14 June 1995. Butcher Andrews drafted it. It revoked his prior wills. It appointed Jacqueline and a partner of Butcher Andrews as his executors. By clause 5, Philip gave various chattels to Jacqueline for life, with remainder to his two daughters. By clause 6, he gave legacies of £10,000 to each of his two daughters. By clause 7, he gave his residuary estate to Jacqueline. Clauses 8 and 9 gave substitutional gifts of residue (which do not arise) to his two daughters and to Jacqueline’s two children.
45. Philip died on 9 October 1999. His health had been declining since the move to Norfolk. Emma saw him two days before he died and went to his funeral. Mr Curtis, the first defendant, is a partner in Butcher Andrews and an executor of Philip’s 1995 will. Jacqueline telephoned him on 22 October 1999 and (as noted by Mr Curtis) related that she had had an unpleasant telephone call from Emma, who had screamed at her, demanded access to things that had been her mother’s, referred to Penny having paid for Fullers Hill and said that “she wants money”. The note records that Emma mentioned an “old will” to Jacqueline, which Jacqueline told Mr Curtis she had not seen. Emma also rang Mr Curtis on the same day. He said he had a civilised conversation with her. His brief note of it reads “Sentimental over the furniture originally when second wife died planned to split six ways”, which he said in cross-examination was a reference to a plan that Philip’s estate should be split six ways.
46. Mr Curtis sent Emma a copy of Philip’s 1995 will on 29 October 1999. She showed it to her brothers and sister and discussed it with them. She also discussed it with Sarah Howe. She was apparently unable to contact Jane Clark in order to discuss it with her, although she wanted to. She wrote to Mr Curtis on 10 December 1999. In her letter, Emma expressed her appreciation at Jacqueline’s willingness to consider returning certain of Penny’s personal belongings to the claimants, and she listed about a dozen of them. The only part of the letter of direct relevance to the present issues is its second paragraph, in which Emma wrote:
The delay in replying has been due, largely, to our astonishment and dismay to note that Philip gave no recognition, in the will, of his continued enjoyment of our mother’s home, following her death.
47. That sentence is significant for what it does not say. The claimants’ case, supported by Emma, is that Philip committed himself to an agreement with Penny by which he was to leave his entire estate equally between Penny’s four children and his two children. Emma claims to have been told by her mother of the agreement on more than one occasion. She claims Philip confirmed it to her in about 1991 and that she told Jacqueline about it in the same year. She claims to have regarded it as important, and she had apparently made a reference to it to Mr Curtis on 22 October. She had now discovered that it had been broken. Yet her letter makes no mention of it or its alleged breach. It suggests, at most, that she regarded Philip as perhaps owing some moral obligation towards the claimants arising from his inheritance of Fullers Hill. In cross-examination, Emma said that the “recognition” she expected to see in Philip’s will was a disposition of the entirety of his estate to the six children. But she had said no such thing in her letter, let alone that she claimed that Philip had committed himself to this. Her explanation for this omission was that she was trying to be polite. I do not regard that as much of an explanation. The making of the case she now advances did not require her to be impolite.
48. Mr Curtis’s response to her letter was on 19 January 2000. He wrote:
When I saw [Jacqueline] on Tuesday this week, I was disappointed to hear that reports had reached her of your family threatening proceedings in respect of [Philip’s] estate - claiming in particular an interest in the house at Fullers Hill, which he bought jointly with [Penny] - and which was left to him by her Will when she died in 1986.
These claims are apparently without any legal foundation whatsoever but are nonetheless extremely upsetting for [Jacqueline].
I am proposing distributing the bulk of [Philip’s] estate during the next few days, but should be grateful if you could kindly confirm that there will be no more rumours of such an unsettling nature ...
49. Emma replied to that letter on 20 January 2000 saying that she was taking counsel’s opinion and that in the meantime a caveat had been issued against a grant of probate on Philip’s 1995 will: it had in fact been issued on 26 October 1999. That ought to have held up the grant although Emma had no grounds for issuing it and Mrs Harrison concedes that the executors named in Philip’s 1995 will were entitled to prove that will. In fact, by an oversight probate was granted to them despite the caveat. The claimants’ case, however, is that the executors are obliged to distribute the estate in accordance with Philip’s 1986 will.
50. The claim form was issued on 20 September 2000. The “mutual wills” claim was asserted in the particulars of claim. This was the first time it had been spelt out on paper. The two legacies of £10,000 to Philip’s daughters have been paid, and Jacqueline has been paid £9,000 on account of her entitlement under the 1995 will. Mr Curtis (the first defendant and a proving executor) retains the remaining assets in the estate, which, as at April 2001, totalled about £133,000.
51. The claimants’ evidence advanced slightly differing accounts of the agreement made by, or understanding between, Penny and Philip in early 1986. I have, however, no doubt - and I find - that Penny and Philip did have one or more discussions at that stage as to the making by them of new testamentary dispositions; and I find that they reached an agreement or arrangement as to what they were to be. It was no coincidence that Penny made her last will on 14 February 1986 and that Philip made a will of his own ten days later. This was plainly the result of an arrangement or agreement they had made. In my view, the best evidence of it is to be found in the terms of the two wills. I find that the arrangement was that Penny was to make a will giving Philip a life interest in the chattels identified in clause 4.1 of her will and an absolute interest in Fullers Hill and its contents; and that, subject to the specific legacies given by clause 3, Philip was to make a will leaving his residuary estate to Penny’s four children and his two children. The arrangement was carried out by the two wills made in February 1986. I will make further findings in relation to it under my next sub-heading.
52. For reasons to which I shall come, I do not regard the resolution of the other factual disputes as crucial to the outcome of this action. First, whether or not Philip ever subsequently acknowledged the making of this agreement or arrangement is in my view irrelevant. If it was irrevocably binding on him, it did not become more so by being acknowledged. If it was not so binding on him, it did not become so by being acknowledged.
53. Secondly, I am anyway not satisfied that he ever did give any subsequent overt acknowledgement of the arrangement to anyone. The matter of Philip’s testamentary intentions was essentially his own personal affair, and it would require at least a certain degree of nerve for Penny’s family to ask him outright about them or what they were. Daniel, in particular, was a very careful witness, and is obviously also a man of some sensitivity, who described himself as a non-confrontational person. I accept his evidence that he raised the matter with Philip after Penny’s death, but I find that he only did so in a generalised way; and in so far as Philip gave him any assurances, I regard it as far from clear that they amounted to more than a statement that his 1986 will remained unchanged - which at the time was true.
54. Hannah, by contrast, was happy to admit to confrontational abilities when the occasion required it, but the disputed part of her evidence all turns on her letter, of which no copy is available. I am not prepared to find, on the probabilities, that it did any more than to remind Philip that he only had a limited interest in certain Birch family chattels. That was the evidence of Jacqueline, whom I regarded as a truthful witness, and it receives at least some support from the fact that Philip promptly invited Penny’s children to take the chattels away. It is common ground that Philip wrote notes to certain of them in response to the letter, and they might perhaps have shed some light on it. But none is in evidence, and Richard did not even read his.
55. Nor am I prepared to accept that Philip gave any assurances to Emma in 1991 about his testamentary intentions. This was not something that Emma had said in her witness statement, but only something she said in cross-examination. The main point she made in her witness statement was that, following the receipt of Hannah’s letter, she reassured him that she and her siblings had no doubt of his intention to observe his agreement with Penny. That had all been provoked by Hannah’s letter, and if that had only been about chattels, that might well have been the context of any reassurance which Emma may then have given him.
56. As regards Jacqueline’s understanding of the 1986 arrangements, there is a conflict between her and Emma. Emma says she told Jacqueline about it in 1991, whereas Jacqueline says the only discussion she had with Emma touching the subject was in about 1988 when they viewed the house at Lee Common, an occasion and conversation which Emma denies. As between the two accounts, I prefer and accept Jacqueline’s, which I regard as more in line with the probabilities. It is true that Emma had apparently mentioned the six-way split plan to Mr Curtis on 22 October. But by December 1999, push had come to shove and, after discussing the matter with her brothers and sister, all Emma could do was to describe her expectations of Philip in the inadequate terms of her letter of 10 December. If that was the best she could do then, when she might reasonably have been expected to spell out the facts on which the claimants now rely, it does seem to me improbable that she would have explained the matter to Jacqueline in 1991 in the detail she now suggests. It is also to be noted that the main focus of Emma’s evidence in her witness statement as to what she says she told Jacqueline in 1991 is not that the claimants would each be asserting a claim to a sixth of Philip’s estate, but rather that they wanted their share of Fullers Hill and its contents; and this also appears to have been the main focus of the claims threatened against Jacqueline as recorded in Mr Curtis’s letter of 19 January 2000. Moreover, as I have said, I found Jacqueline to be a truthful witness, who denied the 1991 exchange with Emma but admitted the earlier one in about 1988, which can be said to have put her on notice of the risk of a claim by Penny’s children to Fullers Hill and can therefore be said to have been adverse to her case.
57. I find also that, at the time Jacqueline gave up her job and agreed to move to Norfolk, she did not know of the arrangement which Penny and Philip had made in 1986 as regards their wills. I further find that, had she known of it, she would not have given up her job and moved to Norfolk.
58. The claimants’ case is founded on the doctrine of mutual wills. Put generally, that is a doctrine which, if applicable, entitles the beneficiaries named in a testator’s revoked will to compel the executors named in his last will to administer his estate in accordance with the terms of the revoked will rather than with those of his last one. It arises most commonly in circumstances in which two people’ usually spouses, agree to, and do, make reciprocal or corresponding wills. In the typical case, each spouse will leave his estate to the other but, in the event of the other predeceasing him, then to their children. Neither spouse will know which of them will die first, but on the death of the first to die (“spouse A”) the estate of the survivor (“spouse B”) will be increased by spouse A’s estate. Provided that spouse B’s will remains unrevoked, the increased estate will, on his death, ultimately devolve on the children and usually no problem will arise. But a problem will or may arise in cases in which, following spouse A’s death, spouse B revokes or changes his current will in a manner which defeats or diminishes the children’s claims. Typically, this may happen in cases in which spouse B remarries, revokes his current will and makes provision for his new spouse by a new will. The question then arising will be whether the children have any remedy, or whether they have no choice but to see the estate go to the new spouse.
59. The answer to this question will turn on whether or not the doctrine of mutual wills applies to the two wills the spouses made. In the example I have given, it might perhaps be thought that one reason why the children ought to have a remedy to compel the distribution of spouse B’s estate to them is that any other result would appear inequitable. Spouse B only acquired spouse A’s estate on the basis of an arrangement with spouse A that he would leave the increased estate to the children; and it might be thought unfair for spouse B to be able to take the benefit of that disposition without being held to the burden of the arrangement under which he received it.
60. Any such argument would, however, be wrong. Quite apart from the fact that the children would be volunteers, would not be parties to the arrangement between the spouses and would have no obvious legal or equitable right to compel spouse B to honour the terms of the revoked will, the doctrine is anyway not founded on considerations of benefit and burden. The example I have given may be a common example of the type of case in which the doctrine of mutual wills can arise, but it is not essential to the doctrine that spouse B should receive any financial benefit under the will of spouse A. What is essential to it is that the making by the two spouses of their wills should be pursuant to a legally binding contract between them. That is shown by the decision of Morritt J in In re Dale, Decd. Proctor v. Dale [1994] Ch. 31.
61. I shall come shortly to the crucial question as to what the ingredients of any such contract must be. But even assuming a sufficient contract, there still remains the logical difficulty as to how the children of will A could take the benefit of it, since they are not parties to it and the doctrine of mutual wills pre-dates by centuries the enactment of the Contracts (Rights of Third Parties) Act 1999. The answer is that, to the basic contractual ingredient, there is also added a measure of trust law. The underlying theory is that, upon spouse A’s death, the effect of the initial contract is to subject spouse B to equitable obligations to honour it, being obligations which are enforceable by the intended beneficiaries. The precise nature of the trust so arising is obscure, although in In re Goodchild, Decd. [1996] 1 WLR 694, at 702, Carnwath J described it as a ‘floating trust,’ which becomes irrevocable following the death of the first testator and crystallises on the death of the second”, a description approved by the Court of Appeal in upholding Carnwath J’s decision (see [1997] 1 WLR 1216, at 1225, per Leggatt LJ).
62. But no such trust, floating or otherwise, arises unless the original arrangement between the spouses (or other will makers) amounted to a contract whose terms are sufficient to trigger it. If there is no such contract, then the doctrine of mutual wills will simply not apply at all. What are the necessary ingredients of a contract sufficient to bring the doctrine into play?
63. Mrs Harrison’s submission is that all that is necessary is that there should be a contract under which the two will makers agree with each other to make wills in a particular form: that is, that in consideration of spouse A making a will in agreed terms, spouse B will make his own will in agreed terms. She submitted further that, once one has proved a contract by two people to do this, it is necessarily implicit in that contract that they will not revoke their wills (or at least that it is so implicit that spouse B will not revoke his will after the death of spouse A). This latter proposition is an essential element of her case, since it is of the essence of a will that it is revocable and it must therefore be an element of the parties’ agreement that they are contracting out of the right to revoke the wills they have agreed to make. If their agreement left them free to do so, it could not operate to subject them to any relevant equitable obligation. Of course, even if spouse B has contracted out of his right to revoke his will, that does not preclude him from doing so and making a new will of which probate can be obtained. But he will not thereby be released from the equitable obligation to which his contract with spouse A subjected him, with the consequence that the executors of the new will can be compelled to give effect to the terms of the revoked will.
64. Mr Redmayne’s submission is that it is not enough for the two spouses merely to agree, or to contract, to make wills in particular terms and to do so. He said that it is essential for it also to be a term of their contract that they should agree not to revoke their respective wills save with the agreement of the other - which will not be possible after the death of the first to die - and that such a term is not implied by the mere fact that the spouses have agreed to make wills in particular terms. He submitted that there is no evidence that the arrangement made between Penny and Philip in early 1986 included any such term, and he relied in particular on the evidence of Mr Whelan to the effect that, if he had been under any understanding that Philip had committed himself to such a term, he would have made a note of it. Mr Redmayne said that there was nothing odd about the need for such a term to be part of the agreement between the spouses. He pointed out that the making of reciprocal wills by spouses is the commonest event, and that such wills will invariably be the fruit of an arrangement or agreement between them. They make such an arrangement because it appears to be the right thing to do at the time in the circumstances then prevailing. But it does not follow that they are intending to bind themselves, or the survivor, to that arrangement for all time. Circumstances change, and can and will reasonably justify the making by the surviving spouse of changes to the will he had made pursuant to the original arrangement. Mr Redmayne submitted that there could be no question of the ordinary arrangement between spouses for the making of reciprocal, or corresponding, wills as giving rise to the operation of the doctrine of mutual wills. Something more is always be required, and that something is a contracting out of the right to revoke the wills so made.
65. In my judgment, Mr Redmayne is right and I accept his submission. It is well supported by the authorities. Most of the authorities include a discussion of the seminal case of Dufour v. Pereira (1769) 1 Dick. 419; 2 Hargr. Jurid. Arg. 304, but I propose to confine myself to authorities decided in the last century. A good starting point is In re Oldham, Hadwen v. Myles [1925] Ch 75, which bears some similarity to the present case. There, the husband and wife had married in 1878, aged about 28 and 20 respectively. On 4 January 1907, they both made reciprocal wills of a fairly elaborate nature by which they each gave their estate to the other absolutely, with alternative provisions in favour of children and other relatives in case of lapse. It was obvious that the wills had been made as a result of an agreement or arrangement between them. The husband died in 1914 aged 64 without revoking his will, which his wife proved. She inherited his estate under it, sworn at (for 1914) the huge figure of £117,000 odd. In 1921, the widow, then aged 64, married Mr Oldham, who was about 29. She made a new will by which she gave him a life interest and, subject to that, left most of her estate to her own relatives. She died in 1922. The executors named in her last will proved it, and the beneficiaries entitled under her 1907 will then claimed to be entitled to her estate, sworn at about £108,000.
66. Astbury J rejected their claim. The essence of his decision was that there was no evidence that it was any part of the spouses’ arrangement when they made their 1907 wills that they were intending to bind themselves by a trust that should be operative in all circumstances or that their wills should be irrevocable. He said, at p. 88:
... there are many reasons which may have operated on the minds of these mutual will makers. Each may have thought it quite safe to trust the other, and to believe that, having regard to their ages, nothing was likely to occur in the future substantially to diminish the property taken by the survivor, who could be trusted to give effect to the other’s obvious wishes. But that is a very different thing from saying that they bound themselves by a trust that should be operative in all circumstances. Suppose that the wife had died first, and the husband not yet sixty had remarried. It is very difficult to suppose that he agreed to a course preventing him making a testamentary provision for his second wife except as to one-twentieth of his residue. Again, his own relatives to whom he wished his residue to go might, many of them, have predeceased the survivor of himself and his wife. If the plaintiff’s alleged trust is operative there is no means of providing by will for such circumstances, and further I cannot help thinking that any reasonable professional man would have advised against the creation of such a trust if brought to his attention. It is difficult to imagine that when the mutual wills were made, it was intended that under no circumstances should the survivor have any power of altering the trusts except by disposition inter vivos ...
The defendants rightly say that the fact that the two wills were made in identical terms does not necessarily connote any agreement beyond that of so making them, and they point out that there is no evidence on which I ought to hold that there was an agreement that the trust in the mutual will should in all circumstances be irrevocable by the survivor who took the benefit.
Putting it shortly I have no sufficient means for deciding with certainty what, among many possible inferences, is the sole inference that ought to be drawn from the circumstances of this case.
67. That decision was approved by the Privy Council in Gray and Others v. Perpetual Trustee Company, Limited and Another [1928] AC 391. In delivering the advice of the Board, Viscount Haldane referred, at p. 400, to Re Oldham and said:
The most recent judgment on the effect of mutual wills made by husband and wife, without independent evidence of any contract, is that of Astbury J in In re Oldham [1925] Ch. 75. That learned judge subjected the authorities to a careful examination, and came to the conclusion that the mere fact that two wills were made in identical terms does not of necessity imply any agreement beyond that so to make them. In the case before him he found there was not sufficient evidence of any further agreement, and that there was nothing in the authorities referred to in the argument that constrained him to decide otherwise.
Their Lordships agree with the view taken by Astbury J. The case before them is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the conclusion that an agreement to constitute equitable interests has been shown to have been made. As they have already said, the mere fact of making wills mutually is not, at least by the law of England, evidence of such an agreement having been come to. And without such a definite agreement there can no more be a trust in equity than a right to damages at law.
68. Birmingham and Others v. Renfrew and Others (1937) 57 CLR 666 is a decision of the High Court of Australia. The trial judge, Gavan Duffy J, had found that there had been an agreement for the making of mutual wills, including an agreement by the husband that he would not revoke the will he so made. The claim to set up the mutual wills doctrine succeeded, and was upheld on appeal. Latham LJ said, at p. 674:
There was evidence which, if believed, justified the learned judge in finding that the existence of the agreement in the terms already stated was established. Those who undertake to establish such an agreement assume a heavy burden of proof. It is easy to allege such an agreement after the parties to it have both died, and any court should be very careful in accepting the evidence of interested parties upon such a question. Perhaps most husbands and wives make wills ‘by agreement,’ but they do not bind themselves not to revoke their wills. They do not intend to undertake or impose any kind’, of binding obligation. The mere fact that two persons make what may be called corresponding wills in the sense that the existence of each will is naturally explained by the existence of the other will is not sufficient to establish a binding agreement not to revoke wills so made (In re Oldham [1925] Ch. 75; Gray v. Perpetual Trustee Co. [1928] AC 391; and see Lord Walpole v. Lord Orford (1797) 3 Ves. 402; 30 E.R. 1076, where attention is directed to many considerations which go to show that in a particular case no binding agreement was intended). The judgment of the learned trial judge shows that he was fully aware of all the relevant considerations and I can see no reason for disturbing his decision on the facts.
69. In the same case, Dixon J said, at p. 681:
The four persons who would have taken a fourth part each in residue had he died leaving unaltered the will he made on that occasion set up an agreement between husband and wife by which, in consideration of her making her will, he agreed to make his corresponding will and, if he should be the survivor, to leave it unrevoked. Such an agreement can be established only by clear and satisfactory evidence. It is obvious that there is great need for caution in accepting proofs advanced in support of an agreement affecting and possibly defeating testamentary dispositions of valuable property. The circumstances of the present case, however, invest the story told on the part of the respondents with some probability.
70. Mr G. Boughen Graham wrote an article entitled “Mutual Wills” in The Conveyancer and Property Lawyer, Vol 15 (NS) 1951, p. 28. After referring to various authorities, he expressed (at p. 30) the following view, which I regard as in line with the message conveyed by the authorities to which I have referred:
All that can be gathered from those cases is that the Court must be satisfied from all the facts before it that when the wills were made they were made pursuant to a contract, one term of which was that neither will would be revoked without the consent and agreement of the other party. If such a contract is found then rights and duties may arise thereout: if no such contract is found then the fact that the wills were executed contemporaneously and provided for mutual bequests is of no significance.
71. In my judgment, the correctness of that statement has been borne out by the cases decided since then. Re Newey (Deceased) (1994) 2 NZLR 590 is a decision of the High Court of New Zealand. Hammond J said, at p. 593:
The answer on the law as it now stands appears to me to be that if it can be shown that (a) there was a mutual agreement between the parties (i) to dispose of the relevant property in a particular way, and (ii) not to revoke his or her will without the knowledge of the other; and (b) the survivor has broken such pact; then (c) a constructive trust may be imposed on the personal representatives of the survivor, who will then be required to hold the property on the trusts for the beneficiaries of the will which the survivor undertook to be his or her last will.
The critical element in these requirements is not the mutuality in the wills, thought that must obviously exist. It is that the parties bound themselves not revoke the arrangement; thereby creating what (in contract terms) may be an agreement, and (in an equity sense) a legitimate expectation that the undertaking would be honoured ...
I think it is important to stress the force of the requirement of the undertaking not to revoke a will which is comprehended by the principles I have outlined. Normally, of course, a person having the requisite capacity can revoke a will at any time. The allegation with respect to a mutual will is that one is collaterally binding oneself not to do that which one could normally do as a matter of right. Unsurprisingly therefore, the suggestion that this fundamental principle has been voluntarily displaced is subject to rigorous scrutiny by the Courts.
72. A little later in the same judgment, Hammond J also said, at p. 595:
Some academic writers (eg Rickett, ‘A Rare Case of Mutual Wills and its Implications’ (1982-83) Adel LR 178) and Judges (eg Kelly JA in re Gillespie (1968) 69 DLR (2d) 368, at pp 320-321) have gone so far as to suggest that an agreement not to revoke is to be implied in every case where an agreement to make mutual wills is entered into’ (Rickett at p. 185). For myself, I think that goes too far. It may very well be that the parties agree to make identical (‘mutual’) wills now, but that they agree to go no further than that. That would be a quite acceptable arrangement to come couples, and would leave it open to one or other of them to make such arrangements as they see fit in futuro. Presentism is a perfectly rational response to a very fluid world ...
I record that Mrs Harrison placed reliance on Professor Rickett’s article in her argument to me.
73. Finally, I refer again to the decision of the Court of Appeal in In re Goodchild, Decd. [1997] 1 WLR 1216. Leggatt LJ re-emphasised, at p. 1224, that for the doctrine of mutual wills to apply there must be a contract at law, and he referred to Morritt J’s decision in In re Dale [1994] Ch. 31. Then Leggatt LJ said this, at p. 1225:
Two wills may be in the same form as each other. Each testator may leave his or her estate to the other with a view to the survivor leaving both estates to their heir. But there is no presumption that a present plan will be immutable in future. A key feature of the concept of mutual wills is the irrevocability of the mutual intentions. Not only must they be binding when made, but the testators must have undertaken, and so must be bound, not to change their intentions after the death of the first testator. The test must always be, suppose that during the lifetime of the surviving testator the intended beneficiary did something which the survivor regarded as unpardonable, would he or she be free not to leave the combined estate to him? The answer must be that the survivor is so entitled unless the testators agreed otherwise when they executed their wills. Hence the need for a clear agreement.
Dennis and Joy executed wills in the same terms save that each left his or her estate to the other. Thus the survivor was to have both estates. They wanted Gary to inherit the combined estates. But there was no express agreement not to revoke the wills. Nor could any agreement be implied from the fact that the survivor was in a position to leave both estates to Gary. The fact that each expected that the other would leave them to him is not sufficient to impress the arrangement with a floating trust, binding in equity. A mutual desire that Gary should inherit could not of itself prevent the survivor from resiling from the arrangement. What is required is a mutual intention that both wills should remain unaltered and that the survivor should be bound to leave the combined estates to the son. That is what is missing here.
74. Morritt LJ delivered a concurring judgment, making essentially the same point in a succinct passage on p.1230, and Phillips LJ agreed.
75. Those authorities are mainly directed to cases in which two spouses have made mutual wills of a corresponding or reciprocal nature. The facts of the present case are of course rather different, although Mr Redmayne did not submit that the lack of reciprocity was, by itself, any answer to the claimants’ case. The arrangement which Penny and Philip made in 1986 was one under which she was to make provision for him in her will, by leaving him Fullers Hill absolutely, whereas he was not to make any provision for her in his will. The expectation was that she would die first, as she did, and the wills reflected that. Mrs Harrison laid great stress on that expectation as being a feature that ought to justify a finding that both testators must be taken to have agreed that Philip’s will was to be irrevocable after Penny’s impending death. I am unable to accept that. This feature of course makes this case different from many or most cases, but I do not regard it as a relevant difference for the purposes of the issue with which I am now concerned. Wills are ordinarily made in the contemplation of death, although the time of its occurrence will usually be less predictable than it was in Penny’s case. But the key question in every case, including this one, is still whether or not there is any evidence justifying the finding that the parties were each contractually committing themselves to a testamentary disposition which, so far as the survivor was concerned, was to be irrevocable.
76. I can identify no such evidence in this case. There is no express evidence to that effect from any witness or from any document, and nor do I find myself able to draw the inference that there was any implied contractual commitment to that effect. It may well be that, had Philip’s circumstances remained the same, Penny expected him to stand by his February 1986 will, and indeed there is no reason to believe that he would not have done so: the first change to his will was only made in 1991, after he had married Jacqueline. But had Penny foreseen that Philip would or might remarry, I regard it as far from obvious that she would not have wished him to be free to make provision for his new wife, including by will. The claimants’ case is, in part, that Penny always wanted Fullers Hill to go to them. That was certainly her intention when she made her 1982 will, under which she gave Philip merely a life interest in it. But she had different ideas by the time of her 1986 will, by which she gave it to Philip absolutely and so gave him dominion over it. There is no satisfactory evidence as to why she made that change, but it is not in my view a feature lending any help to the claimants’ case.
77. The result is that I find that the claimants have failed to prove that it was any part of the agreement that Penny and Philip made in early 1986 that Philip’s 1986 will should be irrevocable after Penny’s death. That being so, they have failed to establish an essential element they need to prove in order to achieve success on the basis of the doctrine of mutual wills. It follows that their attempt to establish a case by reference to that doctrine fails. I find that Philip’s estate falls to be administered in accordance with the terms of his 1995 will.
78. It follows further that the claimants also fail in their claims to unscramble the transaction under which Jacqueline acquired Mill House by survivorship and to recover from her the £40,000 of bonds that Philip gave her. Those claims are dependent on the claimants first establishing that Philip became equitably bound towards them by the terms of his 1986 will. Mrs Harrison relied in support of them on a passage in the judgment of Dixon J in Birmingham and Others v. Renfrew and Others (1937) 57 CLR 666, at 689, 690; and also on a passage in the judgment of Nourse J in In re Cleaver, Decd, Cleaver and Another v. Insley and Others [1981] 1 WLR 939, at 946, 947. I propose to say no more about these passages, and the claims for which they are invoked, than that they appear to me to raise very difficult questions to which I do not intend to attempt to venture answers.
79. I indicated at the beginning of this judgment that, as an alternative to the mutual wills claim, the claimants assert that Philip became estopped from revoking his 1986 will. Had the mutual wills claim succeeded, they would not have needed to have recourse to any estoppel. I have found that it has failed, and the claimants did not satisfy me that there is any separate basis for the claim that Philip was ever relevantly affected by some alleged estoppel. By the end of the trial, I did not understand Mrs Harrison to be arguing otherwise, That claim fails too.