Some Aspects Of Mutual Wills
| Date | 01 April 1951 |
| Author | J. D. B. Mitchell |
| DOI | http://doi.org/10.1111/j.1468-2230.1951.tb00195.x |
| Published date | 01 April 1951 |
SOME
ASPECTS
OF
MUTUAL WILLS
TEE
subject of mutual wills is one which appears
so
rarely in
English law reports that
it
might be regarded as one of purely
academic interest.
Re Green,I
however, demonstrates that such
wills are still made, and that the subject has practical importance.
At
the same time
it
affords an opportunity of reviewing some of
the consequences which
flow
from mutual wills, consequences which
perhaps are not always contemplated by the authors of such
documents. The general principle has been summarised thus
:
'
Where two persons have made an arrangement as to the disposal
of their property and executed mutual wills in pursuance thereof,
on the death
oE
one of them without having revoked his will, the
arrangement crystallizes into a contract. Accordingly the personal
representatives of the survivor take the survivor's property upon
trust to
perform
that contract
The nature
of
the
obligation.
The two concepts
of
trust and contract are somewhat loosely
used in this context. In the normal case
it
is a third person, a
stranger to the mutual will agreement, who, as one of the ultimate
beneficiaries after the dropping of both lives, is seeking
to
enforce
it. Clearly as a stranger he must find more than a contract
in
his
favour. He must find a trust. Moreover, since generally he
is
a
volunteer, he must go further,
if
he is to succeed, and show that
the trust is fully constituted.s That the trust concept is at the
foundation
of
this doctrine was recognised in
Dufour
v.
Pe~eira,~
the parent case. Although Lord Camden, there, used the word
'
contract'
it
is clear that he regarded the arrangement as
more
than that, and expressly calls the survivor a trustee.6 In the same
way Lord Haldane insisted on proof
of
a clear agreement before the
court could find that
a
mutual will arrangement. had come into
being.O He did
so
because without that agreement there could be
no trust, not because without it there would be no contract. There
is
therefore little dispute about the nature
of
the rights involved,
or
about the conditions necessary to the existence of the agreement.
The difficulties that arise relate rather to proof of compliance with
those conditions. On that point
Re Green (supra)
has at least
removed doubts which had arisen as a result of
Re
Oldhum'
3
Re Green (Deceased), Lindner
v.
Green
and
Om.
[1950]
9
All
E.R.
913.
2
Williams on Executors,
12th ed.,
p.
78.
Jeffrier
v.
Jefin'es
(1841) Cr.
&
Ph.
138.
4
(1769) 1
Dick.
419; more
fully
reported
in 2
Hargr.Jurid.Arg.
304.
5
2
Hargr.Jurid.Ar
.
at
p.
310.
6
Draw
v.
Perpetuaf Trustee
Co.,
Ltd.
[1928]
A.C.
391,
400.
7
Re
Oldlinm,
Hadtoen
v.
Myles
[1925]
Ch.
75.
186
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