A husband and wife executed mirror wills in 2017 which left their respective estates to each other, if surviving, and the residuary estate of the surviving spouse to their four children in equal shares. At the time of execution, their solicitor explained that if the husband were to die first there was no guarantee the wife would not subsequently change her will; the husband confirmed that he trusted his wife implicitly and the wife responded verbally that she would not change her will. In 2019 the husband died and the wife took his estate. Subsequently, the wife executed a new will leaving her entire estate to the defendant, being one of their four children, and died shortly thereafter. The claimants, their three other children, contended that the wills executed in 2017 were mutual wills by which the wife’s estate came to be held in trust for all four children equally and that, even if no clear mutual agreement like a contract were found to have been made, the circumstances were capable of giving rise to proprietary estoppel. The trial judge held that: (i) the doctrine of mutual wills did not apply since, inter alia, the evidence did not clearly and satisfactorily demonstrate that there was a legally binding agreement, akin to that of a contract, that neither spouse would revoke their wills without the consent of the other, the husband’s implicit trust in his wife being, on the contrary, evidence that he did not need to make such an agreement; and (ii) the authorities did not support the engagement of the doctrine of mutual wills based on proprietary estoppel and, on the evidence, proprietary estoppel had not arisen in any event. The claimants appealed, contending that the trial judge had erred in law in failing to give proper effect to the trust that each of the will-makers expressed in the other and, further, in finding that an express agreement was necessary whereas the authorities demonstrated that an implied agreement sufficed.
On appeal by the claimants—
Held, appeal dismissed. (1) What was required to establish mutual wills was a clear agreement, whether strictly contractual or not, and expectation or expression of trust was not enough. The trial judge had not fallen into the error of saying an agreement had to be express for the invocation for the doctrine of mutual wills, but had made an evidential point that a one-sided reference to revocation meant that there was no material on which to find a mutual agreement. In the absence of such agreement, and in accordance with authority, the doctrine of mutual wills was not engaged (paras 31, 34).
(2) As a matter of principle, it might be possible for the doctrine of mutual wills to be engaged on the basis of proprietary estoppel if the evidence supported it. However, since there was no agreement, because it was not established that the parties had intended to bind themselves beyond the realms of trust, there was likewise neither the necessary representation intended to be relied on as to the wife’s non-revocation of her will, nor reliance on any such representation, and, accordingly, a proprietary estoppel had not arisen (para 40).
Michael Horton KC and Guy Holland (instructed by Taylor Rose MW) for the claimants.
The defendant in person.