Olins v Walters
For mutual wills, it is enough that there is a contract not to revoke the wills, and the claimant does not need to identify precisely which property is subject to the trust.
Facts
Mr and Mrs Olins made mutual wills in 1988, with the help of their grandson, a solicitor, leaving their property to each other and then to their grandchildren and others. After Mrs Olins died, Mr Olins accepted that there had been an agreement, but argued that the agreement was not enforceable because it was not clear which property it covered. He wanted a declaration that he was free to make a new will.
Legal principle
The Court of Appeal held that the mutual wills agreement was binding. Mummery LJ said that, for mutual wills, there must be a contract between the testators that the wills will not be revoked. Once that is established, a constructive trust arises on the death of the first testator, and it does not matter that the precise property subject to the trust cannot be identified at that time. The trust attaches to the survivor's property, and the details of how it operates can be worked out later.
Related cases on secret trusts and mutual wills
- Blackwell v Blackwell [1929] AC 318
- Re Boyes (1884) 26 Ch D 531
- Re Cleaver [1981] 1 WLR 939
- Re Gardner (No 2) [1923] 2 Ch 230
- Re Goodchild [1997] 1 WLR 1216
- Healey v Brown [2002] EWHC 1405 (Ch), [2002] WTLR 849
- Kasperbauer v Griffith [2000] WTLR 333
- Re Keen [1937] Ch 236
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