References: [2002] 19 EG 147, [2002] EWHC Ch 1405, (2002) 19 EG 147
Links: Bailii
Coram: David Donaldson QC HHJ
Ratio: The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: Subject to the 1989 Act the arrangement was enforceable. As to the 1989 Act: ‘section 2(1) deprives any non-compliant agreement of the legal status and hence effect of a binding contract, where section 40 of the 1925 Act (and the predecessor Statute of Frauds) had simply rendered such an agreement unenforceable.’ and ‘as a matter of both principle and authority, that the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land.’ If section 2 did apply the documents would not satisfy it, and ‘section 2(1) of the 1989 Act applies so as to deprive the mutual will compact of any legal effect as a contract. The significance of this conclusion lies in the fact that the mutual wills doctrine is anchored in contract, and presupposes a legally binding agreement.’ However the doctrine of part performance could in this case be applied to impose a trust on the defendant.
Statutes: Law Reform (Miscellaneous Provisions) Act 1989 2
Jurisdiction: England and Wales
This case cites:
- Cited – Dufour v Pereira ((1769) 1 Dick 419, (1769) 2 Harg Jurid Arg 304, Commonlii, [1769] EngR 63, (1769) Dick 419, (1769) 21 ER 332)
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . . - Cited – Re Heys ([1914] P 192)
Any will, even when stated to be non-revocable, is at law by its nature revocable by a testator, and even where the testator has agreed contractually with another person not to revoke it, a subsequent will in breach of any such agreement will . . - Cited – Gray v Perpetual Trustee Co Ltd PC ([1928] AC 391, Bailii, [1928] UKPC 56)
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us 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 . . - Cited – Birmingham v Renfrew ((1937) 57 CLR 666, Austlii, [1937] HCA 52)
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . . - Cited – Horton v Jones ((1935) 53 CLR 475)
(High Court of Australia) A claim by plaintiff against the personal representatives of her ex-employer for breach of an oral agreement by him to make a will leaving her property which would include interests in land failed on the ground that it fell . . - Cited – Goodchild and Another v Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . . - Cited – In re Dale dec’d ChD ([1994] Ch 31)
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . . - Cited – In re Cleaver dec’d, Cleaver v Insley ChD ([1981] 1 WLR 939, [1981] 2 All ER 1018)
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . . - Cited – Maddison v Alderson HL ((1883) 8 App Cas 467)
The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit . . - Cited – Lloyds Bank plc v Rosset HL ([1991] 1 AC 107, [1990] 2 WLR 867, [1990] 1 All ER 1111, Bailii, [1990] UKHL 4, Bailii, [1990] UKHL 14)
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . . - Cited – Ottaway v Norman ChD ([1972] Ch 698, [1971] 3 All ER 1325)
The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her . .
(This list may be incomplete)
This case is cited by:
- Cited – Legg and Another v Burton and Others ChD (Bailii, [2017] EWHC 2088 (Ch))
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
(This list may be incomplete)
Last Update: 03 July 2019
Ref: 246958
The post Healey v Brown: ChD 25 Apr 2002 appeared first on swarb.co.uk.
