In the Estate of Heys. Walker v Gaskill
| Jurisdiction | England & Wales |
| Date | 1914 |
| Year | 1914 |
| Court | Probate, Divorce and Admiralty Division |
Probate - Mutual Wills - Joint Tenancy of Leasehold Property - Severance - Will revocable - Subsequent Will pronounced for.
A husband and wife, joint tenants of leasehold properties, executed mutual wills in 1907, the clear arrangement between them being that those wills were to be irrevocable.
The husband died in 1911, and his will was proved.
In 1912 the wife executed a codicil to her will, and, in 1913, she executed a fresh will. These later documents were executed by the wife in breach of a definite arrangement between herself and her husband in 1907 when their mutual wills were executed:—
Held, that the agreement or arrangement between the husband and wife to execute the mutual wills, and the execution of those wills, severed the joint tenancy in the properties in question and created a tenancy in common.
Held, further, that the will of 1907 was revocable, and that the will of 1913 should prevail as the true last will of the deceased (widow).
THE plaintiffs, as executors, propounded the last will, dated January 22, 1913, of Mary Heys, widow, who died on May 10, 1913.
The defendants were a number of persons interested under an earlier will, dated October 10, 1907, which they alleged was one of two mutual wills then executed by the deceased and her husband. The husband died on October 20, 1911, and his will was duly proved, and the said Mary Heys received benefits thereunder. The material facts are stated by the learned President in his judgments.
Le Bas, for some of the defendants (minors). It is clear that the wills of October 10, 1907, were mutual wills. There was ample consideration and no attempt to alter either of them in the lifetime of the deceased's husband.
As to whether the leaseholds are the joint property of the husband and wife, it is difficult to find a case more on all fours with this than In re Wilford's Estate, Taylor v. Taylor.F1 The irrevocability of mutual wills is considered in the judgment in Stone v. HoskinsF2, and the earlier authorities are there cited.
Then the only other thing is to ask for a declaration as claimed alternatively in the defendants' pleading, namely, “If the (said) alleged codicil dated the 5th September, 1912, or the (said) alleged will dated the 22nd January, 1913, is admitted to probate, a declaration that the plaintiffs or one of them are trustees or a trustee for these defendants to the extent of the benefits given to them under the will of the deceased dated the 10th October, 1907, and as such hold the property of the deceased in trust for these defendants.”
W. O. Willis, for the other defendants, did not desire to add anything.
R. M. Middleton, for the plaintiffs. The last will ought to stand.
These mutual wills are and have been treated as contracts: Hobson v. Blackburn and BlackburnF3; Gould v. Kemp.F4 In certain instances a will would be, or might be, a severance of a joint tenancy: In re Wilford's Estate, Taylor v. TaylorF1; Hargrave's Juridical Arguments.F5 As to enforcing a contract or promises to make Wills, see Fortescue v. HennahF6, where a covenant to make a will was held good, the consideration being marriage; and in Robinson v. OmmanneyF7 there was also consideration for a covenant not to reform a will. Those cases and the case of Lord Walpole v. Lord OrfordF8 shew that the Court will go into the matter of consideration.
[SIR SAMUEL EVANS, PRESIDENT, referred to In the Goods of Letitia LovegroveF9, which appeared to be a case of a joint will.]
In one of the cases there cited, namely, In the Goods of Joseph RaineF10, also a case of a joint will, Sir C. Cresswell gave a definition of a mutual will. It is submitted that the present case is just outside that definition.
Le Bas in reply. This Court has all the powers of a judge of the Chancery Division under the Judicature Acts. [In the Goods of Tharp, Tharp v. MacdonaldF11 and In the Goods of MarchantF12 were also referred to.]
April 7. SIR SAMUEL EVANS, PRESIDENT. I will at once give my decision on the facts and reserve my decision on the law.
The plaintiffs are the executors appointed under the will of January 22, 1913; the defendants are various people who are interested in establishing the validity of an earlier will of October 10, 1907.
Mary Heys was the widow of Joseph Heys. These two people lived happily and the wife had assisted her husband in saving money. Most of this money was invested in leasehold property, the leases of which were taken by the husband and wife as joint tenants, so that if nothing was done to sever the joint tenancy the whole of the properties would be taken by the survivor.
These two people called in Mr. Coup and gave instructions for the preparation of the two wills dated October 10, 1907.
In these two wills the whole of the property is dealt with without reference to ownership. The wills are both exactly the same, his in favour of her, and hers in favour of him, with gifts over to their respective relatives.
By the execution of the wills it is said there was a severance of the joint tenancy. My impression is there was, but I will look into that matter too.
I am satisfied on the evidence of Mr. Coup that there was a clear arrangement between the husband and wife that those wills were to be irrevocable if nothing happened in the lifetime of either and I find that nothing did happen.
In this case the deceased got the codicil of 1912 prepared and Mr. Coup explains the circumstances under which it was prepared, and his explanation is a perfectly natural one.
The deceased made this codicil and a subsequent will.
I find as to this codicil and the subsequent will that they were made in breach of a definite arrangement come...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your 7-day Trial
-
Charan-Jyothi Ramamurthie Naidoo v David Barton
...re Cleaver [1981] 1 WLR 939 re Coomber [1911] 1 Ch 723 re Dale [1994] Ch 31 re Goodchild [1997] 1 WLR 1216 Re Hey, Walker v Gaskill [1914] P. 192 Royal Bank of Scotland Plc v Etridge (No.2) [2002] 2 AC 773 Sheikh v Malik [2018] EWHC 973 (Ch) Thomas and Agnes Carvel Foundation v Carvel ......
-
Shovelar and Others v Lane and Others
...668. 42 I have looked at the English authorities cited in those cases. I do not gain much from them. In the estate of Heys, Walker v Gaskill [1914] P. 192 mutual wills had been executed and the survivor executed new wills in breach of a definite arrangement between herself and her husband t......
- Hudson v Gray
-
DANTHIKA LAKSHAMANI ABEYWARDENA WICKRAMASINGHE VS. HETTIARACHCHIGE SUNNY DE ALWIS - HON. A. H. M. D. NAWAZ, J
...Re Crofton (1897) 13 TLR 374 (where there was a joint codicil to separate wills); Re Piazzi Smyth [1898] P 7; Re Heys, Walker v Gaskill [1914] P 192 at 196. "Wills are mutual when the testators confer on each other reciprocal benefits, which may be absolute benefits in each other's property......
-
Osborne v Estate of Osborne: an equitable agreement or a contract in law: merely a matter of nomenclature?
...Walpole (1799) 2 Harg Jurid Arg 272, 294-5 (Lord Loughborough LC); Synge v Synge [1894] 1 QB 466, 471-2 (Kay LJ); In the Estate of Heys [1914] P 192, 199 (Evans P); Re Richardson's Estate (1934) 29 Tas LR 149, 155 (Nicholls CJ); Birmingham (1937) 57 CLR 666, 685 (Dixon J); Bigg [1990] 2 Qd ......
-
Wills
...cannot make their wills by one and the same instrument. 6 Stone v. Hoskins [1905] P. 194; Re Oldham [1925] Ch. 75; In the Estate of Heys , [1914] P.192 at 196-197 but see Pereira v. Pereira (1925-26) L.R.B.G 134 where it was held that the fact that each of the spouses to a mutual will had d......
-
Mutual wills: contemporary reflections on an old doctrine.
...Lupoi for the discussions we have had upon this subject and for providing me a copy of this work. (22) See, eg, Estate of Heys v Gaskill [1914] P 192, 197 (Evans P); Estate of Masters (1994) 33 NSWLR 446, 455 (Mahoney JA). (23) Birmingham (1937) 57 CLR 666. (24) McPherson J in Bigg v Queens......