Mutual Wills: the case of Legg and Burton v Burton and others | A proprietary estoppel solution to replace the need for a binding contract?

15th August 2017

John Dickinson, barrister within St John’s Chambers’ wills & trusts team, was successful in acting for the Claimants in the two day trial heard on 2nd and 3rd August, with judgment being handed down by His Honour Judge Matthews on 11th August 2017 in the High Court, Chancery Division of the Bristol District Registry. The Claimants established a constructive trust under the doctrine of mutual wills under which the estate of their Deceased mother was held for the Claimants, rather than being held under her last Will for various of her grandchildren and others. The judgment is available below.

The case contains a useful summary of the mutual wills doctrine. HHJ Matthews considered submissions made on the fallibility of memory, referring to the decision of Leggatt J in Blue v Ashley [2017] EWHC 1928 (Comm) and he analysed the evidence in terms of its inherent probability and the plausibility of the Claimants’ case. HHJ Matthews finds a proprietary estoppel route around the problem in the much criticised case of Healey v Brown [2002] EWHC 1405 (Ch), in which section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 was held to prevent a binding contract from arising for a specific gift of an interest in land and this in turn prevented a mutual wills constructive trust from being established. There is an interesting analysis of when a mutual wills constructive trust crystallises. HHJ Matthews considered that in a mutual wills case the constructive trust would generally arise on the death of the second testator, unless the agreement made between them had some term providing to the contrary. He considered whether the mutual wills constructive trust satisfied the so-called ‘three certainties’ rule, being (1) the intention to make a gift, (2) over what property and (3) who to. HHJ Matthews explains that the ‘three certainties’ rule is not a rule about trust law but rather a rule about property law, and that trusts being part of property law must follow that rule.

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