Re Dale, decd
| Jurisdiction | England & Wales |
| Date | 1993 |
| Year | 1993 |
| Court | Chancery Division |
Will - Mutual wills - Implied trust - Husband and wife making wills in identical terms - Agreement to devise all real and personal property to daughter and son in equal shares - Husband dying without altering or revoking his will - Surviving wife making new will giving son majority of estate - Whether doctrine of mutual wills applicable - Whether necessary for survivor to have obtained personal financial benefit
In 1988 a husband and wife each executed identical wills. Each will contained a bequest of all real and personal property in favour of the testators' daughter and son, the plaintiff and defendant respectively, in equal shares or the survivor of them and appointed them executors. Two months later the husband died without having altered or revoked his will and probate was granted to the plaintiff and defendant in August 1990, the value of his net estate amounting to some £18,500. On 14 July 1990 the wife made a fresh will which revoked all former wills and testamentary dispositions and appointed the defendant as executor. She bequeathed to the plaintiff the sum of £300 and to the defendant the remainder of her property. She died in November 1990 and her fresh will was proved in June 1992, the value of her net estate amounting to some £19,000. In July 1992 the plaintiff issued a writ alleging, inter alia, that the mutual wills had been made pursuant to and in consideration of a binding and irrevocable agreement and claimed that on the death of her father, or on the grant of probate in respect of his will, her mother had become bound in equity to give effect to the agreement and to dispose of her estate in accordance with the terms of her mutual will, and that as a consequence of the revocation of the mutual will and execution of the new will the defendant held the real and personal estate of his mother as trustee for the plaintiff and himself in equal shares.
On the preliminary issue whether for the doctrine of mutual wills to apply it was necessary for the second testator to die to have obtained a personal financial benefit under the will of the first testator to die: —
Held, that the application of the doctrine of mutual wills required the parties to have entered into a legally binding contract to make and not to revoke mutual wills and that the first testator to die had performed his part of the agreement; that, since the aim of the principle underlying the doctrine was to prevent fraud on the first testator to die, it was not confined to cases in which the surviving testator had benefited under the will of the first testator to die but extended also to cases where the two testators had left their property to beneficiaries other than themselves; and that, accordingly, the preliminary issue would be answered in the negative (post, pp. 665E–666B).
The following cases are referred to in the judgment:
Ammal v. Aiyar (
Basham, decd., In re [
Birmingham v. Renfrew (
Cleaver, decd., In re [
Dufour v. Pereira (
Gray v. Perpetual Trustee Co. Ltd. [
Hagger, In re; Freeman v. Arscott [
Heys, decd., In the Estate of; Walker v. Gaskill [
Oldham, In re; Hadwen v. Myles [
Stone v. Hoskins [
Walpole (Lord) v. Lord Orford (
Wilford's Estate, In re; Taylor v. Taylor (
The following additional cases were cited in argument:
Ashville Investments Ltd. v. Elmer Contractors Ltd. [
Beswick v. Beswick [
Colchester Estates (Cardiff) v. Carlton Industries Plc. [
Denyssen v. Mostert (
Green, decd., In re [
Ottaway v. Norman [
Police Authority for Huddersfield v. Watson [
Woodar Investment Development Ltd. v. Wimpey Construction U.K. Ltd. [
PRELIMINARY ISSUE
By a writ issued on 24 July 1992 by the plaintiff, Joan Margaret Proctor, against her brother, the defendant, Alan Trevor Dale, the plaintiff alleged that on or before 5 September 1988 her father, Norman Dale and her mother, Monica Dale, had made an agreement with each other as to the disposition of their respective estates on their respective deaths which was intended by both of them to be binding and irrevocable and that wills dated 5 September 1988 had been made in pursuance of that agreement and in consideration of it. The plaintiff claimed that on the death of her father or on the grant of probate in respect of his will, her mother became bound in equity to give effect to the agreement and to dispose of her estate pursuant to the terms of her will dated 5 September 1988 but that wrongfully and in breach of the agreement she revoked that will and left all her estate except £300 to the defendant. The plaintiff claimed that as a consequence the defendant held the real and personal estate of their mother as trustee for the plaintiff and himself in equal shares. On 16 October 1992, district judge Mr. G. R. Ashton, sitting in chambers in the Blackpool District Registry of the Chancery Division, made an order that there be tried as a preliminary issue the question whether the submission pleaded in paragraph 16 of the defence constituted a good defence in law to the causes of action pleaded by the plaintiff. Paragraph 16 appeared in the following terms:
“Even were Mr. and Mrs. Dale to have executed their respective wills dated 5 September 1988 pursuant to and in consideration of the alleged agreement, then these wills were and are incapable of existence as mutual wills in that by their respective wills Mr. and Mrs. Dale did not provide any benefit for the other, so that Mrs. Dale did not on the death of Mr. Dale take any such benefit under his will with the result that there was not imposed on Mrs. Dale any obligation enforceable by the plaintiff to distribute her estate in accordance with the alleged agreement.”
The facts are stated in the judgment.
Charles Machin for the plaintiff.
James Bonney for the defendant.
11 February. MORRITT J. read the following judgment. This preliminary issue raises the question whether for the doctrine of mutual wills to apply it is necessary for the second testator to die to have obtained a personal financial benefit under the will of the first to die. The circumstances in which the question arises may be shortly stated. On 5 September 1988 Mr. Norman Dale and his wife Mrs. Monica Dale each made a will. The terms of each will were the same. After revoking all former wills and testamentary dispositions the will contained a bequest of all real and personal property in favour of the plaintiff and the defendant in equal shares or the survivor of them, and appointed them to be the executors. The plaintiff and the defendant are, respectively, the daughter and son of Mr. and Mrs. Dale.
Mr. Norman Dale died on 9 November 1988 without having altered or revoked his will. Probate of Mr. Dale's will was granted to the plaintiff and the defendant on 24 August 1990. The value of his net estate was about £18,500. On 14 July 1990 Mrs. Monica Dale made a new will. She revoked all former wills and testamentary dispositions and appointed her son, the defendant, to be her executor. She bequeathed to her daughter, the plaintiff, the sum of £300 and gave and bequeathed to her son all the remainder of her property. Mrs. Dale died on 30 November 1990 and her will dated 14 July 1990 was proved by the defendant on 30 June 1992. The value of her net estate was about £19,000.
The writ in this action was issued on 24 July 1992. By her statement of claim the plaintiff alleges that on or before 5 September 1988 Mr. and Mrs. Dale agreed with each other as to the disposition of their respective estates on their respective deaths, that such agreement was intended by both of them to be binding and irrevocable and that the wills dated 5 September 1988 were made in pursuance of that agreement and in consideration of it. It is claimed that on the death of Mr. Dale, or on the grant of probate in respect of his will, Mrs. Dale became bound in equity to give effect to the agreement and to dispose of her estate pursuant to the terms of her will dated 5 September 1988, but that wrongfully and in breach of the agreement she revoked that will and left all her estate except £300 to the defendant. The consequence, as alleged, is that the defendant holds the real and personal estate of Mrs. Dale as trustee for the plaintiff and himself in equal shares.
A number of matters are put in issue by the defence, including the question of law directed to be tried as a preliminary issue. That appears in paragraph 16 of the defence in the following terms:
“Even were Mr. and Mrs. Dale to have executed their respective wills dated 5 September 1988 pursuant to and in consideration of the alleged agreement, then these wills were and are incapable of existence as mutual wills in that by their respective wills Mr. and Mrs. Dale did not provide any benefit for the other, so that Mrs. Dale did not on the death of Mr. Dale take any such benefit under his will with the result that there was not imposed on Mrs. Dale any obligation enforceable by the plaintiff to distribute her estate in accordance with the alleged agreement.”
By an order dated 16 October 1992 the question whether that paragraph constitutes a good defence in law to all the...
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