The testator and testatrix made wills leaving everything to each other absolutely, and, after their deaths, to the first defendant. Following the testator’s death, the testatrix made a new will, by which the claimant was appointed sole beneficiary. The defendants denied the validity of the new will, contending that the testatrix and testator had entered into a mutual wills agreement and the testatrix had been bound by its terms. If there was a mutual wills agreement, the claimant sought its recission on the ground that it had been procured by the first defendant’s undue influence. The defendants submitted that where a mutual wills agreement was expressed in a will, the test for determining whether to set it aside on the ground of undue influence was the probate test for the vitiation of wills, which was more stringent than that applicable to the setting aside of a contract under the court’s equitable jurisdiction.
On the claim—
Held, claim allowed. That although under a mutual wills agreement the survivor’s property was affected by a constructive trust imposed by equity to give effect to the agreement, a mutual wills agreement was a contract first. There was no reason why a test of undue influence developed for probate purposes and concerned with the validity of a will should be pressed into service to undo a contract giving rise to just such a trust, or (perhaps) the trust itself, where an equitable doctrine, apt to avoid contracts and dispositions, was already available. The probate test was, therefore, inapplicable to the doctrine of mutual wills, and that was so whether the agreement was expressed in the will, as in the instant case, or outside it. The testator and testatrix had entered into a mutual wills agreement, that agreement had been procured by undue influence, and would therefore be set aside. Accordingly, the testatrix’s new will took effect according to its terms, so that the claimant rather than the first defendant was the beneficiary of her estate (paras 40, 41, 95, 86–88, 90, 141).
Jordan Holland (instructed by Hill Dickinson LLP) for the claimant.
Joseph Chiffers (instructed by POCA Solicitors Ltd, Liverpool) for the defendants.