The parties disputed whether wills made were mutual.
Held: The Court upheld the finding of the judge at first instance that there was an oral agreement between two testators (Denny and Laura, each with a son from a previous marriage, Martin and Jonathan) for mutual wills, based on extrinsic evidence alone.
Mummery LJ (with whom Smith and Wilson LJJ agreed) said: ‘Direct evidence is not available on the two critical points in Martin’s claim: the existence of a mutual wills agreement between Denny and Laura and the execution of a will by Laura pursuant to it. No will, or copy will, or instructions for a will relied on as the mutual will made by Laura during Denny’s lifetime has been produced. There is no indication in Denny’s professionally drafted will or in the solicitor’s attendance note that it is a mutual will.
The deficiency of direct evidence and the piecemeal nature of the evidence relied on by the judge for his conclusion do not, in my view, defeat Martin’s claim or undermine the judgment. It is, of course, unfortunate that Denny’s personal and financial papers were unavailable as direct evidence. However, evidence can be evaluated by a court and facts can be perceived and proved by the process of drawing reasonable and probable inferences from other facts, such as primary facts specifically found, undisputed events and uncontroversial circumstances surrounding them. All of those matters may be safe points of departure for the judicial process of drawing inferences that can lead to an evidentially satisfactory conclusion.’
. . And ‘I think that the judge both made, and satisfactorily explained how he made, reasonable and proper inferences from the facts, events and circumstances summarised earlier in this judgment about what was probably agreed to be done and probably done by Denny and Laura about the disposition of their estates to each other and to their respective sons.
In his detailed critique of the evidence (and the lack of it) Mr Norris paints a picture of a sparsely documented case based on unreliable oral evidence about events of almost 25 years ago involving two principal parties now both dead. Retrospective critical analysis is, of course, a necessary part of the process of evaluating the evidence and deciding what has been proved on the balance of probabilities. The critical process should not, however, deflect the court from the incontrovertible fact that, at the heart of the case, there was a testamentary predicament which was more likely to have been addressed than ignored by this elderly couple, each with a son from a previous marriage with prospects of inheritance of their parent’s assets. The probabilities are that they discussed the situation and reached an agreement along the lines alleged by Martin for the re-ordering of their affairs following the marriage. To me the judge’s findings on what was probably agreed and done have the ring of truth. They are based on reliable and satisfactory evidence given by Martin, which the judge was entitled to accept, even though he did not accept other aspects of his evidence; on the timing and contents of Denny’s last will; on Mundays’ note of what they were told by Denny about Laura making a will on their marriage; and on Laura’s unsent letter and her telephone conversations with Martin.’
Judges:
Mummery, Smith, Wilson LJJ
Citations:
[2010] EWCA Civ 1410
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited by:
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 28 August 2022; Ref: scu.427000