Mutual Wills—Blackpool Illuminations
| Author | A.H.R. Brierley |
| Published date | 01 January 1995 |
| Date | 01 January 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb01997.x |
January
19951
Re
Dale
Mutual Wills
-
Blackpool Illuminations
A.
H.
R.
Brierley
*
Arcane legal concepts such as secret trusts (both fully and half secret), mutual wills
and donutiones mortis
cuusu
may be particularly beloved by university teachers
when setting examination questions in trusts and succession, but legal practitioners
appear to be markedly less enamoured of them, at least if their popularity is to be
measured by the frequency with which such cases have featured in the law reports
in recent times.
Seen
in this light, 1991 brought a bumper crop of cases in relation to the donutio
mortis cuusu, which was the subject of the Court of Appeal decisions in Sen v
Headley’ and Woodard v Woodard.* By the same token, 1993 can be viewed as
an unnus rnirubilis for the mutual will: the decision
of
Morritt
J
in Re Dale3 is the
first case to be reported in this country since the decision of Nourse
J
in Re
Cleaver4 and it sheds valuable light on a hitherto unexplored aspect of the
doctrine.
The facts of the case were as follows. Norman Dale (TI) and his wife Monica
Dale
(n)
made identical wills in 1988 whereby each left hidher estate to their son
and daughter (the defendant and plaintiff respectively) in equal shares. T1 died
without having altered or revoked his will, leaving a net estate of about
f
18,500.
Some two years after Tl’s death,
T2
died, leaving a will made in 1990 which
revoked the 1988 will and which left the whole of her estate (worth about
f
19,000)
to the son, save for a pecuniary legacy of
f300
to the daughter.
The doctrine of mutual wills was described by the judge as being to the effect
that ‘where two individuals have agreed as to the disposal of their property and
have executed mutual wills in pursuance of the agreement, on the death of the first
(Tl) the property of the survivor (T2), the subject-matter of the agreement,
is
held
on an implied trust for the beneficiary named in the wills.’5
*Solicitor, formerly Lecturer in Law, University
of
Bristol.
I
am
very grateful to J.R. Kerridge for his helpful comments on an earlier draft
of
this note.
1 [1991] Ch 425. The Court of Appeal held that land could
be
the subject-matter of a
donurio morris
cuusu
-
despite the view to the contrary of
Lord
Eldon LC in
LhfieM
v
Elwes
(1 827) 1 Bli
(NS)
497
-
on the basis that, although the doctrine of
hnurio
mom’s
cuusa was anomalous, ‘anomalies do not
justify anomalous exceptions’
@er
Nourse
LJ,
at
440).
2 [1992] RTR 35; (1991) 21
Fam
Law 470;
The
Times,
15 March 1991. See [1992]
56
Conv 53
(Martin). The Court of Appeal held that the requirement of delivery of the subject-matter of the gift, or
the means of obtaining control over it, was satisfied in the case of a car, notwithstanding that the
logbook had not been handed over; this was because it was not a document of title. The donee was in
possession
of
the car and one set
of
keys before the gift, and the words of gift operated to change the
nature of his possession from that of bailee to that of donee. The fact that the donor might have retained
a second set of keys was of no importance because he was ill in hospital with leukaemia and incapable
of driving.
3 [1993] 4
All
ER 129. The case was heard in Blackpool but judgment was given in London.
4 [1981] 1 WLR 939, noted in [1982]
46
Conv 228 (Hodkinson). The next most recent decision in
England and Wales is
Re
Green
[1951] Ch 148 (Vaisey J). Recent notable Commonwealth decisions
include
Prutr
v
Johnson
(1959) 16 DLR (2d) 385 (Supreme Court of Canada);
Re
Gillespie
(1969) 3
DLR (3d) 317 (Ontario Court
of
Appeal);
Re
Ohorodynk
(1979) 97 DLR (3d)
502
(Ontario High Court
of Justice. An appeal was dismissed:
see
(1980) 102 DLR (3d) 576).
Bigg
v
Queensland
Trustees
Lrd
[1990] 2 Qd R 11 (Queensland Supreme Court), noted (1991) 54 MLR 581 (Rickett).
[1993] 4 All ER 129, 132.
0
The
Modem
Law
Review Limited
1595
5
95
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