Birmingham v Renfrew: 11 Jun 1937

(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 ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’ and ‘Those who undertake to establish such an agreement [ie of mutual wills] assume a heavy burden of proof’.
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’

Dixon J, Latham CJ
(1937) 57 CLR 666, [1937] HCA 52
CitedDufour v Pereira 1769
Nature of Joint and Mutual Wills
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 . .
CitedRe Oldham; Hadwen v Myles 1925
The court was asked whether an agreement for mutual wills should be inferred. The court said that it is inherently improbable that a testator should be prepared to give up the possibility of changing his or her will in the future, whatever the . .

Cited by:
CitedGoodchild and Another v Goodchild CA 2-May-1997
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, . .
CitedIn re Cleaver dec’d, Cleaver v Insley ChD 1981
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 . .
CitedGoodchild v Goodchild ChD 13-Dec-1995
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
Held: The wills were in identical terms, but . .
CitedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
CitedWalters 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 . .
CitedHealey v Brown ChD 25-Apr-2002
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: . .
CitedLegg 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, Contract, Trusts, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.183791