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 further one, and created a trust. The claimant now sought removal of the executrix and to set aside earlier orders made in the administration of the Estate. The US courts had upheld the reciprocal and mutual wills, but the executrix had made applications to the court here without informing the court of the US proceedings, or the claimant of the proceedings.
Held: The applications succeeded. The obligations under a mutual will arose not under the wills themselves but under a trust created at the time when the wills were made. A court did not therefore have jurisdiction to remove an executor under the 1985 Act at the request of somebody not claiming under the will proved. However the Foundation was in a position to apply under the 1896 Act.
In summary proceedings it would be wrong to make any finding that the executrix had behaved dishonestly, but if not she had showed a failure to understand her duties, and the court was not inclined to believe that she would abide by court orders. The orders were made.
In proceedings under section 50 of the 1985 Act: ‘The overriding consideration is, therefore, whether the trusts are being properly executed; or, as he put it in a later passage, the main guide must be ‘the welfare of the beneficiaries.”

Lewison J
[2007] EWHC 1314 (Ch), [2007] 4 All ER 81
Judicial Trustees Act 1896, Administration of Justice Act 1985 50
England and Wales
CitedRe Smith 1880
Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court’s inherent jurisdiction to control trusts arises allowing if necessary an order for his removal. . .
CitedRe Ratcliff 1898
The court has no inherent jurisdiction to remove a personal representative in that capacity. . .
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 . .
CitedIn re Hagger; Freeman v Arscott ChD 1930
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 . .
CitedBirmingham 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 . .
CitedRe Marshall’s Will Trusts 1945
The word ‘trust’ is to be given its ordinary meaning. Cohen J adopted, as its ordinary meaning, the definition then to be found in Underhill on Trusts: ‘A trust is an equitable obligation, binding a person (who is called a trustee) to deal with . .
CitedGleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
MentionedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedWytcherley v Andrews 1871
Lord Penzance said: ‘There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, . .
CitedNana Ofori Atta (II) v Nana Abu Bonsra (II) PC 1958
(West Africa) Care must be taken in respect of the notion that merely standing by and waiting to see the outcome of a case in which the non-party has an interest, without more, involves an abuse of process. The parties now disputed title to land, . .
CitedHouse of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
CitedKammins Ballrooms Co Limited v Zenith Investments (Torquay) Limited HL 1970
The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. . .
CitedLetterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 11 November 2021; Ref: scu.253582