Ottaway v Norman: ChD 1971

Proof required for mutual wills claim

The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her will in a way which did not reflect the intention. On her death, the plaintiffs sought a declaration that the property was held on trust for them.
Held: Considering secret trusts and the doctrine of mutual wills: ‘It will be convenient to call the person upon whom such a trust is imposed the ‘primary donee’ and the beneficiary under that trust the ‘secondary donee.’ The essential elements which must be proved to exist are: (i) the intention of the testator to subject the primary donee to an obligation in favour of the secondary donee; (ii) communication of that intention to the primary donee; and (iii) the acceptance of that obligation by the primary donee either expressly or by acquiescence.’
Brightman J interpreted Lord Westbury’s statement in McCormick as meaning that if a will contains a gift in absolute terms that ‘clear evidence is needed before the Court will assume that the testator did not mean what he said’ and the standard of proof ‘is analogous to that ‘which the court requires before it will rectify a written instrument, for there again a party is saying that neither meant what they have written’.
Brightman J
[1972] Ch 698, [1971] 3 All ER 1325
England and Wales
CitedMcCormick v Grogan HL 23-Apr-1869
C made a will leaving his property to G, and appointed him executor. When about to die C sent for G and in a private interview told him of the will, and G asked whether that was right. C said that he would not have it otherwise. C then told G where . .

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, . .
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: . .
CitedKasperbauer; Griffith v Griffith; Havens; Zorab and Griffith CA 21-Nov-1997
. .

These lists may be incomplete.
Updated: 03 June 2021; Ref: scu.183794