Legg & Anor v Burton & Ors

Factual and Procedural Background

This judgment concerns a trial of a claim about alleged mutual wills made by a deceased testatrix. The testatrix made a will in July 2000, which is in question, and a later will in December 2014, of which probate was granted. The claimants are the two daughters of the testatrix. The defendants are two grandsons of the testatrix (sons of the second claimant) and the partner of one of them. The first defendant is the executor who obtained probate, while the second and third defendants are executors named in the will who did not prove it but retained the power to do so.

The claimants allege that the wills made by the testatrix and her husband in July 2000 are mutual wills under the equitable doctrine of mutual wills. The husband died in May 2001. After his death, the testatrix made over a dozen further wills, mostly between 2011 and 2014, which progressively favored the defendants over the claimants. The estate’s major asset was a former council house acquired under a government scheme in the 1980s.

The claim was commenced in May 2016, seeking a declaration that the estate was held on trust for the claimants in equal shares. The claim form pleaded that the testatrix and her husband agreed not to revoke or change their wills, and that this agreement was explained to the claimants and one defendant at the time of execution. The defendants denied the existence of mutual wills or any agreement to that effect, relying on the express terms of the 2000 will.

During the pre-trial review, an application to call the solicitor who attended the testatrix in 2000 was refused, and an application to exclude irrelevant evidence was adjourned to trial. The case was transferred from the county court to the High Court due to factual and legal complexity.

Legal Issues Presented

1. Whether the wills made by the testatrix and her husband in July 2000 constitute mutual wills binding on the testatrix’s estate despite the later will made in 2014.
2. Whether there was a legally binding agreement between the testatrix and her husband that they would not revoke or change their wills without notice to each other.
3. The nature and timing of the constructive trust arising from the doctrine of mutual wills, including its subject matter and operation on the death of the first testator.
4. The evidential standard and assessment of the credibility and reliability of oral evidence relating to the alleged agreement.

Arguments of the Parties

Claimants' Arguments

• The testatrix and her husband made mutual wills in July 2000, accompanied by a binding agreement not to revoke or change them.
• The agreement was expressly communicated to the claimants and one defendant at the time of execution.
• The testatrix’s subsequent wills do not override the equitable obligations arising from the mutual wills doctrine.
• Evidence includes direct testimony from the claimants about the discussions and promises made at the time of execution and afterwards, supported by circumstantial evidence such as the testatrix’s 2004 conduct.

Defendants' Arguments

• Denial that the testatrix and her husband executed mutual wills or had an agreement to that effect.
• The express terms of the 2000 will, stating the residuary estate was to pass “absolutely and beneficially and without any sort of trust or obligation,” negate the existence of any fiduciary trust or mutual wills.
• The testatrix made multiple subsequent wills, some of which favored the defendants, demonstrating no binding agreement not to revoke or change the wills.
• The defendants, being children at the time of execution, provide only limited and indirect evidence, essentially negative, regarding the alleged agreement.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed analysis of the evidence, focusing primarily on the circumstances surrounding the making of the wills in July 2000, as no challenge was raised to the validity of the later will other than on the basis of mutual wills. The court examined the will documents, the direct oral evidence from the claimants, and limited indirect evidence from other witnesses.

The court found that the wills were professionally drafted mirror wills, but the will language did not expressly indicate mutual wills or any binding agreement. The defendants emphasized clauses indicating absolute beneficial ownership without trust obligations, but the court held that if a mutual will trust exists, it arises outside the will and such clauses do not negate it.

The oral evidence from the claimants was assessed carefully. The court acknowledged the inherent difficulties with memory and the risk of reconstruction or bias but found the claimants’ evidence generally credible, consistent, and supported by the circumstances. The claimants testified that their parents expressly agreed and promised not to revoke or change their wills, describing the wills as "set in stone". The court accepted that the testatrix made such a promise, corroborated by an incident in 2004 when the testatrix reversed a change to her will after being reminded of her promise.

The court weighed the negative and limited indirect evidence from the defendants and others, noting the testatrix’s inconsistent later wills but concluded that these did not negate the existence of the original binding agreement. The court also considered established legal principles and precedent emphasizing that mutual wills require a legally binding agreement, not merely moral obligations, and that such agreements can be inferred from direct or extrinsic evidence.

The court considered the doctrine of proprietary estoppel as an alternative basis for the equitable obligation, finding it consistent with the mutual wills doctrine and capable of binding the testatrix’s estate.

Regarding the constructive trust arising from mutual wills, the court held that the trust arises upon the death of the first testator, binding the survivor’s estate to the terms of the mutual wills. The trust’s subject matter is the residuary estate left at the death of the survivor, and the court rejected arguments about uncertainty of subject matter. The survivor may have limited rights to use capital during life consistent with the agreement, but cannot unilaterally dispose of the estate in breach of the agreement.

The court emphasized that the claimants’ subsequent conduct or family disputes do not affect the equitable obligation binding the testatrix’s estate. The testatrix’s testamentary freedom was effectively frozen upon her husband’s death by their mutual agreement.

Holding and Implications

Judgment was entered in favor of the claimants. The court held that the testatrix and her husband expressly promised each other in 2000 that their wills would not be revoked or changed, thereby engaging the doctrine of mutual wills. Consequently, the testatrix was not free to unilaterally alter her will in a manner inconsistent with the 2000 will. The testatrix’s personal representatives must hold her estate on trust to give effect to the terms of the July 2000 will, not the later 2014 will.

The direct effect is that the estate must be distributed according to the 2000 wills as mutual wills, benefiting the claimants equally. The decision does not establish any new legal precedent but applies established principles concerning mutual wills, constructive trusts, and evidential standards. The court’s ruling underscores the binding nature of mutual wills agreements and the equitable constraints on testamentary freedom arising therefrom.