Re Cleaver
Where mutual wills are made under an agreement, the survivor holds the property on a constructive trust that binds his estate, even if he makes a new will.
Facts
Arthur Cleaver and his third wife made wills in identical terms, leaving their property to each other, and then to his children. They had agreed that the survivor would not change the will. After Mr Cleaver's death, his widow inherited his property, and later made a new will leaving most of her property to her own relatives. The children claimed that her estate was bound by the earlier agreement.
Legal principle
Nourse J held that the widow's estate was held on constructive trust to give effect to the earlier wills. He said that, where there is an agreement to make mutual wills and not to revoke them, and the first testator dies having kept the agreement, the survivor is bound by a constructive trust from the moment of the first death, because it would be a fraud for the survivor to take the benefit of the other's will while departing from the agreement. The trust binds the property even though the survivor makes a new will.
Related cases on secret trusts and mutual wills
- Blackwell v Blackwell [1929] AC 318
- Re Boyes (1884) 26 Ch D 531
- 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
- McCormick v Grogan (1869) LR 4 HL 82
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