The husband and wife had made wills in similar terms, each leaving their separate property to each other on the first spouse dying with remainders over. They agreed that the wills should not be revoked without the agreement of the other. The wife died first, and the husband received the income for his lifetime from her estate as under the will.
Held: The property of the wife held by the surviving husband under her will and to be disposed of by his own will was subject to a trust in that behalf under which the legatees in absolute remainder took the vested interests subject to the husband’s life interest. Therefore the death of a legatee before the husband’s death did not mean that that interest lapsed. His interest had already vested. A common intention of husband and wife and taking of benefit are sufficient to establish mutual wills.
Clauson J set out the principles underlying the law’s acceptance of mutual wills: ‘To my mind Dufour v. Pereira decides that where there is a joint will such as this, on the death of the first testator the position as regards that part of the property which belongs to the survivor is that the survivor will be treated in this Court as holding the property on trust to apply it so as to carry out the effect of the joint will. As I read Lord Camden’s judgment in Dufour v. Pereira that would be so, even though the survivor did not signify his election to give effect to the will by taking benefits under it. But in any case it is clear that Lord Camden has decided that if the survivor takes a benefit conferred on him by the joint will he will be treated as a trustee in this Court, and he will not be allowed to do anything inconsistent with the provisions of the joint will.’
Clauson J
[1930] 2 Ch 190, [1930] 99 LJ Ch 492, [1930] 143 LT 610
England and Wales
Citing:
Explained – Dufour 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 . .
Cited by:
Cited – Goodchild 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, . .
Cited – The 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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Family
Updated: 20 January 2022; Ref: scu.183796