Mutual wills: Lord Walpole’s case

Monday, 01 October 2012
Using the case of Lord Walpole v Lord Orford to explore the history of mutual wills and problem areas to consider.

When I was asked to give a paper on mutual wills I realised that all the textbooks deal with the topic of mutual wills even if some of the discussions vary, and not wishing to look as if I were repeating what other writers have written, I hoped it might be of interest to address the topic through the great case of Lord Walpole v Lord Orford.

It is, I think, important to stick to the designations of mirror wills and mutual wills. In the seventh edition of Jarman, p44, the authors, Sanger and Willis, say:

‘Sometimes a husband and wife each make wills giving all their property to the other with alternative provisions in the case of lapse. Such wills are often referred to as mutual wills when made pursuant to an agreement. In such cases the survivor can revoke or alter his or her will.’

But such wills I call mirror wills. If there is agreement not to revoke they can become mutual wills. It is the latter that I am discussing here.

Although there has been quite a body of learned writing on the topic of mutual wills there are relatively few reported cases on the topic, which might mean that the law is simple, that few of those wills are ever made, or, perhaps more likely, that it is extremely difficult to know if they have been made and to prove an agreement not to revoke unless this is included as a term of a written contract. Whatever may have been the view in earlier times, it is clear now that there must be a term, express or implied, to leave the will unrevoked if the first to die leaves their will in the form agreed by the parties. I should say there are some difficulties with this, to which I may return, so far as wills being revoked by marriage are concerned.

However, my aim tonight is not so much to discuss the general law of mutual wills but to discuss this in relation to the case of Lord Walpole v Lord Orford and to deal with some other interesting questions decided in that case that might not be decided in the same way now.

Lord Walpole v Lord Orford

The reason the case is interesting is that it is a splendid example of English social history and law coming together, and it is not possible to understand it without knowledge of the first part of the case, which is often ignored. Nor is it possible to understand it without an understanding of land law and limitations of estates.

So to commence the story I must introduce the characters, all of whom are descendants of Robert Walpole and his wife Mary, the parents of the great Whig Prime Minister Sir Robert Walpole. Robert and Mary Walpole had 19 children. As many died in infancy we need only concern ourselves with some of these children. First is Robert, fifth child and third son, who is generally regarded as the first prime minister of Great Britain. Horatio was the fifth son. There were others: Dorothy the sixth daughter and Susan the seventh daughter.

Robert lived at Houghton Hall. It is this estate that was worth a contest. He borrowed a book from the Sidney Sussex Library in 1688. It was returned in 1956 when the 5th Marquess of Cholmondeley, whose family inherited Houghton Hall, discovered it in the Houghton Hall library and returned it. On this line Sir Robert, Prime Minister, became the first Earl of Orford. Horatio, who was born in 1678 and died in 1757, became Baron Walpole of Wolterton. Dorothy, born in 1686, who died in 1728, married Charles Townshend, the famous Turnip Townshend, a rather fierce gentleman who introduced a fourth field into the order of rotation of crops because he was so keen on turnips. Dorothy was his second wife. Thomas, one of his grandsons by his first wife, was Viscount Sydney.

Susan, sometimes called Susanna, married Anthony Hamond. They had three sons: Richard, Robert and Horatio.

Sir Robert Walpole, 1st Earl of Orford, had four sons and two daughters. Their second son, Horatio, died in infancy. The fourth, Horace, later became known as Horatio, and ultimately became the fourth Earl of Orford, Edward having pre-deceased him. This Horatio is mainly famous for building Strawberry Hill, near Twickenham, and for writing the Gothic novel The Castle of Otranto. His second daughter, Mary, married the 3rd Earl of Cholmondeley. Maria was the daughter of Sir Robert Walpole’s mistress. He gave her a courtesy title and later she married Charles Churchill and became part of the Marlborough clan.

Robert, the 2nd Earl of Orford, had only one son, George Walpole, the 3rd Earl of Orford. He is one of the main characters in this story as it was the codicil he made that caused the litigation. Edward had no legitimate children, although he did have an illegitimate daughter, who was lucky enough to become Duchess of Gloucester. Horatio died unmarried. Mary, Lady Cholmondeley, had two sons, George and Robert. George had one son, also George, the 4th Earl of Cholmondeley, a litigant in the Walpole case.

I now leave the family of the great prime minister and move to his brother Horatio, 1st Baron Walpole. He had four sons and five daughters. He had a son, Horatio, the 2nd Baron, who is the Lord Walpole in this great case. To confuse matters, when Horatio on the other side died and its male line died out, he, Horatio of Wolterton, by new creation became Earl of Orford. This Horatio had a son, called – naturally – Horatio.

Now let’s get back to the wills. George Walpole, 3rd Earl of Orford, grandson of Sir Robert, made a will dated 25 November 1752. By that will he devised his money, land, tenements and inheritances in the County of Norfolk (except some particular ones) to trustees John Harris and H Crewys to uses as follows:

  1. To the use of his first and other sons in tail male;
  2. Remainder to his uncle Sir Edward for life;
  3. Remainder to trustees to preserve contingent remainders;
  4. Remainder to sons of Edward in tail male;
  5. Remainder to Uncle Horatio for life;
  6. Remainder to trustees to preserve contingent remainders;
  7. Remainder to Uncle Horatio’s sons in tail male;
  8. Remainder to Lord Malpas eldest son of George Earl of Cholmondeley for life;
  9. Remainder to trustees to preserve contingent remainders;
  10. Remainder to the first and other sons successively of Lord Malpas in tail male;
  11. Remainder to Robert, second son of George Cholmondeley for life;
  12. Remainder to trustees to preserve contingent remainders;
  13. Remainder to first and other sons successively of Robert Cholmondeley in tail male;
  14. Remainder to Lady Mary Churchill for life;
  15. Remainder to trustees to preserve contingent remainders;
  16. Remainder to her first and other sons successively in tail male;
  17. Remainder to great Uncle Horatio (later Baron Walpole of Wolterton) for life;
  18. Remainder to trustees to preserve contingent remainders;
  19. Remainder to Horatio, eldest son of Great Uncle Horatio for life;
  20. Remainder to trustees to preserve contingent remainders;
  21. Remainder to the first and other sons successively of Horatio in tail male;
  22. Remainder in the same way to Thomas, Richard and Robert and their descendents;
  23. Remainder in the same way to the Townshend and Hamond families.

There was, to make things more complicated in the future, a name and arms clause for the Townshend and Hamond families to ensure that in the unlikely event they inherited the Orford lands these would remain under the name of Walpole.

In wills and settlements before the Real Property Act 1845, contingent remainders were liable to destruction by various means, some artificial, such as forfeiture or surrender of the preceding freehold estate, or by a gap in the seisin if an age contingency were not fulfilled. The device of appointing trustees to preserve contingent remainders was introduced to prevent lapse as the remainder to trustees was held to be vested.1 On 31 May 1756, George, the 3rd Earl of Orford, made a new will. This will was in precisely the same terms as the 1752 will, down to the position where the Cholmondeley family were first mentioned. At that stage they and those who came after them were postponed to the family of Great Uncle Horatio. Augustus Townshend was left out as he had died and Robert Hamond was also left out as he had died.

On the same day as this will was made, Horatio, the great uncle of George the 3rd Earl of Orford, brother of Sir Robert and later Lord Walpole, made a codicil to his will that confirmed various matters in it, but subject to those devised what were then settled lands to his eldest son Horatio for life, then to trustees to preserve contingent remainders, then remainder to that Horatio’s sons successively in tail male and then similar provisions for his other sons, Thomas, Richard and Robert.

However, if all those remainders failed then he gave his estate to George, Earl of Orford, and his issue male, then to Sir Edward, then to Horatio, then to Lord Malpas and the Cholmondeley families, then to the family of Maria Churchill, then to the Townshends and then to the Hamond families in the same order and language as in the 1756 will of the Earl of Orford.

Horatio, the 1st Lord Walpole, died in 1757 shortly after he made the codicil to his will. His son, Horatio, became the 2nd Lord Walpole.

It is perfectly clear that the 1756 will of the 3rd Earl of Orford and the codicil of Horatio of the same date were made in concert. They were made on the day before the same witnesses and prepared by the same person. The clear intention was that the original Walpole lands originally inherited by the first Prime Minister and the 1st Lord Walpole would come together in the absence of male heirs. Had things been left in this state then, whether or not there was an agreement not to revoke, if Lord Orford had then died the effect of his will dated 1756 and the codicil to that of Lord Walpole would have been that if the male line on one side died out then the male line on the other would take in preference to the female line on either side.

That, however, did not happen, because on 4 December 1776 Lord Orford, the 3rd Earl, made a codicil to his will. That codicil was as follows:

‘I George Earl of Orford do this fourth day of December 1776 make this codicil to my last will and testament as follows. Whereas I have made my last will and testament dated the 25th day of November 1752 and duly signed and published the same whereby I have devised all my real estate to certain uses but have not charged the same with the payment of my debts nor any legacies nor disposed of my personal estate nor appointed any executor now I do hereby declare this writing to be a codicil to my said will and to be accepted and taken as part thereof as fully and effectually to all intents and purposes as if the same had been actually inserted therein and I do by this my codicil revoke my said will so far only as the same is incompatible herewith and therefore I subject all real and personal estate whatsoever and wheresoever to the payment of all my just debts and legacies hereinafter mentioned and set down and my funeral expenses and for effectuating the payment thereof I give and bequeath all my said real and personal estate to be sold.’

The testator then directed four persons whom he named as executors to sell his estate or such part as was necessary to pay the debts, legacies and funeral expenses and to pay the same. Then he directed that his Houghton and Castle Rising estates should be sold last, these being the famous Walpole estates in Norfolk, only to be sold in case of a deficiency. Castle Rising was a rotten borough and the first seat of Sir Robert Walpole. He gave a legacy of GBP5,000 to Martha Turk and GBP10,000 to Horatio Walpole of Wolterton, eldest son of Lord Walpole, and some other legacies; then said ‘subject to the devises and bequests in my codicil I do hereby ratify and confirm all and every the gifts and devises in and by my said will made or given not hereby altered or revoked’.

By this time the Earl was not well off. He had sold most of the Walpole paintings to Catherine the Great of Russia; in addition it seems his mental state was not good.

Lord Orford died in December 1791 without ever having married. His uncle, Sir Edward, predeceased him and thus he was succeeded in the title as the 4th Earl of Orford by his uncle Horatio, who entered upon the devised lands.

A bill in Chancery was filed by Horatio, 2nd Lord Walpole, claiming under the will executed in 1756 as tenant for life in remainder on the death of Horatio, 4th Earl of Orford, and also by Horatio the son of Lord Walpole on behalf of himself and the other legatees, and also claiming as tenant in tail expectant upon the death of his father. The bill was filed against Lord Cholmondeley, Lord Orford, namely Horatio the 4th Earl, and the executors praying that the will dated 1756 and the codicil of 4 December 1776 as a codicil to the 1756 will be established and the trusts carried into effect. Lord Cholmondeley was a defendant and the main one for the simple reason that if the claim for the 1756 will failed then his line of the family would succeed to the estates, although not to the title, upon the death of Horatio without male heirs.

The bill set out the agreement between great uncle and great nephew to settle their estates on the basis that the female line were not worth thinking about and that if the male line on one side failed then the estates on that line would go to the male heirs on the other side of the family, so that the great Walpole estates would be joined together. The bill went on to say that as Horatio, the 1st Lord Walpole, died in 1757 without having revoked his codicil then the late Lord of Orford was bound and deemed himself bound by the agreement he made with Horatio Lord Walpole, and if he was not bound in law then he was ‘in honour bound thereby and considered himself as bound thereby.’ The bill charged that Lord Orford did not mean to revive or set up the 1752 will or change the limitations of his estate made by the 1756 will, that all he wanted to do was to make provision for payment of debts and to give legacies and to appoint executors, and therefore that the date of the last will and testament was inserted mistakenly in the codicil instead of the date which was intended, namely 31 March 1756.

The Lord Chancellor, Lord Loughborough, directed that certain issues be tried in the Court of Common Pleas, the relevant one being whether George, Lord Orford, devised to the defendant, the Earl of Cholmondeley, an estate entailed in remainder after the death of the defendant, Horatio, on failure of son or sons of the body of Horatio and of issue male of any such son or sons. It is necessary to understand what happened there to understand the result of the mutual wills claim.

In the Court of Common Pleas Lord Cholmondeley was the plaintiff and he won. The Court rejected evidence to show that the codicil was not intended to revoke the 1756 will and revive the 1752 will. In those days an appeal lay only to the Court of King’s Bench in Error. The error had to appear on the record but where there were questions as to admission of evidence this was overcome by the Court, allowing a bill of exceptions that was annexed to the record, and this could be dealt with in the King’s Bench in Error. There the parties were reversed and Lord Walpole became plaintiff and Lord Cholmondeley the defendant. The appeal is reported in 7 Term Reports 138 as Lord Walpole v The Earl of Cholmondeley in Error.

The question then before the Common Pleas and the King’s Bench in Error was whether the 1752 will and the 1776 codicil should be admitted to probate on the ground that the codicil revived the 1752 will and revoked the 1756 will, or whether the codicil in fact was a codicil to the 1756 will. The codicil by its provisions could apply equally well to either will as it really just subjected the estate to payment of debts and legacies and appointed executors.

As I have said, George, the 3rd Earl of Orford, died on 5 October 1791; his Uncle Edward predeceased him unmarried and his Uncle Horatio, formerly Horace, became seized of the real estate for life and heir to the titles, and became 4th Earl of Orford. On the Cholmondeley line George (Lord Malpas) predeceased the 3rd Earl of Orford and his father so that his son, George, the 4th Earl of Cholmondeley, who was first cousin once removed to George, 3rd Earl of Orford, had become entitled under the 1752 will, if Horatio died without male heirs. So I hope that explains why the first round of the battle was between Horatio, 2nd Lord Walpole, whose interests were advanced above the Cholmondeley interests under the 1756 will, and George the grandson of Mary Cholmondeley.

In 1791, by the combined effect of the Wills Act 1540 and the Statute of Frauds, land could be devised by will but the will had to be witnessed by at least three witnesses, which was the case for the 1752 will, the 1756 will and the two codicils. There was no particular provision relating to revival that first appeared in the Wills Act 1837 in s22. That provided that a will could be revived by a codicil showing an intention to revive. This section was brought into New South Wales by s19 of the Wills, Probate and Administration Act 1898.

In the Court of Common Pleas Lord Walpole was defendant. His counsel put the 1756 will into evidence and proved it. Then he attempted to adduce evidence that the first Lord Walpole, Horatio, had made his codicil in 1756 and of the reciprocal arrangement to ensure the Walpole estates remained in the male line and to come together upon failure of that line and instructions given by the Earl of Orford in 1776 to his then steward, Mr Coney, for a codicil to his will and how he said the will was held by a Mr Moore who was instructed to deliver it to Coney who thought it was the last will; that Coney prepared the codicil on that basis and gave it to the Earl of Orford with the 1752 will. The Earl of Orford subsequently signed it after filling in certain blanks. This evidence was rejected, so the jury returned a verdict for Lord Cholmondeley on the question referred. In other words the Court found for the codicil and the 1752 will, which was held revived by the codicil. This gave rise to the bill of exceptions that was then heard in the Court of King’s Bench in Error. The exception was that the evidence was admissible.

To get the evidence in it was necessary to show a latent ambiguity. The codicil referred to the last will dated 1752. This was not the latest will. The trial in Error was heard before the Lord Chief Justice, Lord Kenyon, and Justices Grose and Lawrence. They held in separate judgments that the evidence could not be admitted as there was no ambiguity. They said ‘last will’ and ‘will’ were the same as wills were ambulatory. Lawrence J went on a bit further to say that the evidence supported the Cholmondeley side because Lord Orford must have known he had made the later will; that this was not held by his steward Moore, yet he sent to Moore for his will. By the codicil he made the 1752 will the last will and thus revived it.

An interesting question is whether the same finding would be made today. Probably a claim for rectification would get the evidence in. Books such as Mortimer (second ed, p198) and Jarman (seventh ed, p180) agree that in the older cases a reference in a codicil to an earlier will was sufficient for revival but, because the statutes now require that an intention to revive be shown, that reference is not necessarily sufficient, at least since the decision in In the Goods of Steele [1868] 1 P&D 575. In that case, interestingly enough, Sir James Wilde said ‘the excluded evidence in the celebrated case of Walpole v Cholmondeley proved the error had been committed and the cause of it, on testimony so clear and so free from suspicion as to remove the last trace of reasonable doubt’. This was in stark contrast to the opinion of Lawrence J. In In the Goods of Steele Sir James Wilde said:

‘I therefore infer the legislature meant that the intention of which it speaks should appear on the face of the codicil, either by express words referring to a will as revoked and importing an intention to revive it, or by a disposition of the testator’s property inconsistent with any other intention, or by some other expressions conveying to the mind of the Court, with reasonable certainty, the existence of the intention in question.’

So George, Lord Cholmondeley, won the first issue. The case then moved back to Chancery before the Lord Chancellor, Lord Loughborough, who spent 20 years endeavouring to obtain that office, although once there it seems he was good at it.2 For a long time the Lord Chancellor was the only Chancery judge. This part of the case is reported as Lord Walpole v Lord Orford (1797) 3 Ves Jr 402; 30 ER 1076.

As a matter of interest I have never understood that it is necessary to have a term in words that the wills would not be revoked

As often happened in the 18th century, correct pleadings were considered at least as significant as fair justice. The bill was filed by Lord Walpole and his son, Horatio of Wolterton, the former claiming as tenant for life under the 1756 will in remainder upon the death of Horatio, 4th Earl of Orford, and the latter claiming on behalf of the legatees under the codicil and as tenant in tail expectant on the death of his father. The bill stated an agreement made in 1756 between the Earl of Orford and great Uncle Horatio that they would settle their Norfolk estates to keep the male line in charge, and that with Lord Walpole having died without revoking his dispositions, Lord Orford was bound by that agreement if not in law then in honour.

The evidence established and admitted this time was that the 1756 will and the 1756 codicil were put before the same counsel, executed at the home of Lord Walpole with the same witnesses and perhaps that Lord Walpole kept the Orford will and Lord Orford the Walpole codicil, although that is not clear. The evidence rejected in the trial in the Common Pleas and in Error was put in again. By the time the equity part came on for hearing the 4th Earl of Orford, Horatio, had died without issue, so the Orford male line had died out. The case was heard six years after the testator died, so you can see the court was not concerned with delay. The pleading problem was that the legatees who had claimed under the codicil also claimed in relation to the 1756 will that had been decided against them. They did not plead fraud on the contract but if they did they had to abandon the legacies. As any claim to general relief was inconsistent with the claim for specific relief and for payment of legacies, that was the end of the matter, at least in 1797. However, the Lord Chancellor went on to say that an agreement could be inferred to make the will and codicil of 1756, but that the parties did not bind themselves to keep the instruments in force until death and make the documents irrevocable. He then said that for an agreement to be enforced in equity its terms must be clear, it must be equal and fair, and it must be proved. He held none of the three established even if the bill had properly presented matters relating to the three requirements. It was not clear that there was an agreement not to revoke. It was not fair to the Earl of Orford, who might have had daughters, and it was not fair as the Walpole side had more chance of taking than did the Orford side. He went on to say that no man of sense could have advised the Earl of Orford to make his 1756 will irrevocable. Lord Loughborough was counsel in Dufour v Pereira. He knew what Lord Camden had said.

So what do we learn from this? Get the pleadings right and, to ensure that all is well, enter into a written agreement that includes a term not to revoke the will.

As a matter of interest I have never understood that it is necessary to have a term in words that the wills would not be revoked. I do not understand that wills could not be made pursuant to an agreement to die with a will in those terms in place, so if, for instance, the particular will were revoked by operation of law then there would be an agreement to make a new one in the same terms, but it is not really necessary to consider that further until we come to the question of revocation by operation of law. It is generally accepted that agreement not to revoke is not to revoke without notice.

Now what did Francis Hargrave say about Walpole’s case? He was a great lawyer coming to fame in the Somerset slave case. If you have read his opinion in his juridical arguments you will know he said a great deal.3

The opinion is in some ways a bit like the sort of sermon where the clergyman tells you what he is about to say, then says it, and then reminds you of what he has said. Hargrave was consulted after the decision at law of the King’s Bench. The Walpole interests had decided to put up the white flag, but, as the result of a conversation between Hargrave and the Walpoles’ solicitor, and Hargrave having subsequently given a written opinion, it was decided to raise the mutual will argument in the Chancery part of the case – without success, as I have said. Hargrave did not appear in the case. He explained his argument to the solicitor general, counsel for the Walpole interests, which was considered sufficient by that side, although one gains the impression Hargrave thought his appearance might have helped.

Hargrave’s opinion, a considerable part of which is a good report of Lord Camden’s judgment in Dufour v Pereira, arrived at the conclusion first that there was an agreement for mutual wills in which a term must be implied that they were irrevocable without notice prior to the first dying. The second basis of decision was that as the Earl of Orford had entered upon the Walpole estates, or at least accepted them as far as it was possible to do so, he could not resile from his promise. It is, I would think, rather hard to enter upon an estate when your interest is as a contingent remainderman well behind about four other contingent remaindermen, but nevertheless Hargrave said that that is what the Earl of Orford had done.

In spite of the rather severe words of the Lord Chancellor it is difficult not to feel a little bit sorry for Lord Walpole. You could hardly blame him for trying to prove the 1756 will, but seeking a grant of that with the codicil was inconsistent with the mutual wills argument and when pleading was paramount it was, as Hargrave said, difficult to mount the mutual wills case; and it seems it was a mistake to claim Lord Orford was bound in honour if not in law as the Lord Chancellor seized on this bondage as unknown to law or not enforceable in law. Lord Loughborough’s view that Lord Orford would have wanted a revocable instrument because he might wish to provide for his daughters seems contrary to the actions of the Walpole men, who, like Jane Austen characters, presumably thought daughters should marry landed gentry.

Had there not been separate trials, and if contradictory alternative claims had been allowed, and heard together, it is possible a different result could have been reached. You might recall the remarkable case of the Estate of Park deceased, Park v Park [1954] P 89 and 112. A widower aged 78, not perhaps entirely sensible, and rather amorous with ladies, became attracted by the lady on the desk at his London Club. He married her on 30 May 1949 at 11am. He went home with his new wife, had a little celebration, and made a will at 3.00pm, which made only very modest provision for his new wife. Seventeen days later he died.

In a probate action brought by the executors and contested by the widow and tried by jury, the jury found against the will on the ground the deceased lacked capacity to make it and did not know or approve of its contents. The new wife was glad about this as she did a lot better on intestacy than under the will. The deceased had an earlier will but of course it was revoked by marriage. The widow then brought another action claiming a grant of letters of administration on intestacy.

Whatever else Lord Walpole’s case stands for, it is important to reinforce Lord Camden’s requirement of an agreement not to revoke

The beneficiaries under the earlier will, which was revoked if the marriage was valid, by cross-claim sought probate of that earlier will, contending that the marriage was not valid as the deceased did not have capacity to enter into a marriage contract. In this way those who would have benefited to some extent under the later will sought to redeem their position. Their simple argument was that a person who lacked capacity to make a will at 3.00pm on a particular day lacked capacity to contract for marriage at 11.00am on that day and to give necessary consent. The trial judge, Karminski J, stated that a higher degree of alertness or understanding or soundness of mind was required for the making of a valid will than was required to enter into a valid marriage contract. He held the marriage good. The Court of Appeal did not accept his statements about different levels of capacity or understanding, but nevertheless somehow upheld the marriage because Karminski J had found the deceased capable of understanding the nature of the contract into which he was entering. I do have difficulty with this and think it likely that had all the issues been heard together with a jury the widow might have been found to have always been a femme sole and never in coverture. In fact Singleton LJ indicated this would have been a better course. Karminski J did not like Mrs Park, but she won. Whether she would have been able to go back to her position as the lady on the desk in a London club to be discovered by another old man, I cannot tell. Like Lord Walpole’s case this shows it is desirable to have all claims heard together and not in separate actions. As you know, in probate actions judges generally require the defendant to bring a cross-claim as well as they must show an interest.

Well, enough of Lord Walpole’s case, which I hope you have found a bit interesting. Whatever else it stands for, it is important to reinforce Lord Camden’s requirement of an agreement not to revoke.

I should return to a few principles about mutual wills; there are some matters that I think are of importance. The rights arise in contract. There is no purpose in saying that they arise under some sort of agreement, which need not be binding. Gray v Perpetual Trustee Co Ltd [1928] AC 391 confirms this, relying on Walpole’s case. So do Aslan v Kopf (unreported, Court of Appeal, 16 May 1995) and Barns v Barns (2003) 214 CLR 169. The contract must include a term, which can be implied from circumstances, not to revoke without notice to the other. In other words, if one party to the contract wishes to revoke their will then they must give the other a chance to do the same. But if the first who dies leaves the will in place then the Birmingham v Renfrew (1937) 57 CLR 666 constructive trust hovers over the assets of the second to die by the floating charge waiting to crystallise or, if you like, descend on the assets.

Two questions arise. First, does notice have to be given before death or is dying leaving a will contrary to the agreement sufficient notice? The second question is whether the constructive trust, so-called, binds all the assets of the survivor from date of death of the first to die. The answer to the first question appears to be yes, and the answer to the second question, no.

So far as notice is concerned one theory is that the purpose of notice is to enable the other to change their will, so dying having secretly made a new will enables the survivor to make one as well. I do not want to go into the notice problem very deeply. There is no doubt that Lord Camden in Dufour indicated notice was required before death of the first to die. He said ‘a mutual will is a revocable act. It may be revoked by joint consent clearly. By one only, if he gives notice. I can admit.’ Notice to the other in its ordinary meaning must be that one talks to the other or writes to the other, not that one dies leaving a will contrary to the agreement. However, in Stone v Hoskins [1905] P 194, Sir Gorrell Barnes held that notice given by the proving of a will contrary to the agreement was sufficient, as the purpose of the notice doctrine was only to enable the person later to die to change their will.

Of course that would not be so with husband and wife being involved in a fatal crash. If the husband has in fraud of the contract secretly made a new will and he is older than his wife and presumed to have predeceased his wife, she has no opportunity to alter her will. Mutual wills law is somewhat esoteric and this situation has not arisen as far as I know. In any event McPherson J in Bigg v Queensland Trustees Ltd [1989] 2 Qld 11 held that to be effective notice must be given before death. In that case after the making of mutual wills the husband transferred to his wife certain assets, assuming her will made in accordance with the agreement was still in force. But the wife secretly made a new will and died first. McPherson J referred to Stone v Hopkins. In his opinion that case was not consistent with Dufour nor with what the then Dixon J said in Birmingham v Renfrew. The decision is not without its critics and perhaps could have been decided on the basis of estoppel by encouragement, but in any event it is likely to bring about a fairer result.

So far as question two is concerned, that being whether the constructive trust, so-called, binds all assets from death of the first to die, the position is really determined by Birmingham and Palmer v Bank of New South Wales 2 NSWLR 244 and in the High Court (1975) 133 CLR 150. There is little point in saying Sir Garfield Barwick was wrong. Dispositions to defeat the contract at least to volunteers might be set aside. Dispositions in the ordinary course of life are allowed. The point to bear in mind is that when the mutual wills doctrine appeared in the 18th century outright devises of real estate were rare. It was usual to have life estates or entailed estates, and real estate was in those days the only thing which was really valuable. The person taking such an estate was not in a position to give the freehold away.

Is it a breach if the will is revoked by operation of law, that is, by marriage?

In the case of the first to die who has married after the mutual wills are made, provided the other knows of the marriage I would think that sufficient notice in any event. But leaving that aside if Re Marsland, Lloyds Bank Ltd v Marsland [1939] Ch 820 is correct then marriage of the first to die bringing about revocation is not a breach of the normal mutual wills contract. That, according to Williams on Wills, 5th ed, p22 is partly because any restraint on marriage is contrary to public policy – although it is suggested that may not be the case in the event of remarriage after the first husband or wife has died. The courts have wrestled with the second to die problem. Vaisey J in Re Green deceased, Linder v Green [1951] 1 Ch 148 came to the conclusion that where a wife had died first and the husband had remarried the wife’s moiety should be held on trust for the intended mutual will beneficiaries. He said that the contract at least went so far, but he did say it was not a very easy point and may be doubtful. The moiety may not be easy to identify.

Family Provision Act matters and mutual wills

Finally can I say that while not everyone agrees with Barns v Barns (2003) 214 CLR 169, overturning as it did the Privy Council decision in Schaefer v Schuhmann [1972] AC 572, which in turn overturned the New Zealand decision in Dillon v The Public Trustee of New Zealand [1941] AC 294, as creditors and beneficiaries are not the same, the decision really turned on the meaning of ‘estate’ in the relevant South Australian Act. Nevertheless, from what may be regarded as a practical or fair point of view the decision must be of some merit. Will-makers now make wills on the basis that the right of testamentary freedom is restricted by whatever form of family provision or inheritance legislation is in force. In earlier times the purpose of mutual wills was to fix succession lines, not to escape the clutches of family provision legislation. Thus promises to leave wills in a particular form, if adhered to, on one basis always left the will of the last to die open to family provision claims. You can decide for yourselves whether there is anything wrong with putting breach of promise in the same category. Fortunately for the Lords Walpole and Orford they did not have to worry about that. In any event those claiming there were not within the class of eligible beneficiaries, however ridiculously wide that class might now be.

There is a view that the Barns v Barns meaning of ‘estate’ does not apply in New South Wales in view of the notional estate provisions in the New South Wales Act. That is not a matter on which I express a view, but perhaps it could be the subject of a later paper.

  • 1. See Megarry and Wade: The Law of Real Property, 2nd ed, p215. Dormer v Fortescue (3) (1742) 3 Atk 135.
  • 2. See Foss: Judges of England, p714.
  • 3. Hargrave, Juridical Arguments, vol 2, p272.
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The Hon Mr Justice W V Windeyer

The Hon Mr Justice W V Windeyer is a judge of the Supreme Court of New South Wales.

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