As can often result from mutual wills, the overlapping fields of contract law and equity become central to the resolution of this property dispute, after a claimant intervenes in the immoral acquisition of sole title to the matrimonial home of a son’s parents.
The drafting of mutual individual wills reflected that upon death, the surviving spouse became under law, the sole beneficiary of that person’s equitable and legal interest in the property occupied at the time of death. Where neither party were survivable, the individual wills stated that the wife’s niece was to become the beneficiary of the equally held share of the leasehold, and that the father’s son would inherit the remainder of the estate.
Following the death of the wife, the husband took the liberty of transferring his now sole title to that of a shared (or joint) title to the property with his son; an act that in and of itself, contravened the earlier agreement within their final (and irrevocable by declaration) wills. This transgression had remained unaddressed until the death of the father, preceding a naturally vehement claim by the niece that the transfer of title constituted fraud, and that under those circumstances, the son now held both parents’ share of the property upon trust for her, and that despite any contractual arrangements made between the father and son, the binding nature of the mutual wills superseded any administrative effects constructed under the laws of property.
Despite drawing argument against mutual testation under the property doctrine of survivorship, it remained evident that the father was acting within a fiduciary capacity when surviving his wife’s death, and so by avoiding the duties prescribed him, he breached that obligation in favour of his son’s expectation to benefit.
Again, as with the rules of equity and proscription of contract law, there appeared to be a lack of clarity surrounding the written intentions of the testator and testatrix, while the basis for this opposition relied upon s.2 of the Law Reform (Miscellaneous Provisions) Act 1989, where the disposition of land requires a single co-signed document containing the terms of the arrangement (or at the very least an exchange of those documents) as proof of intention; yet as the mutual wills were never signed by their respective partners, any desire to enforce their bequests became invalid under the Act itself. This essentially meant that:
“No disposition of land can be challenged unless done so with a written and signed document contrary to the one drafted by the person charged.”
Sadly, the nature of the wills were such that neither party co-signed the others wills prior to their deaths, which thereby prevented a contract of sorts to exist, so on this occasion the judges decided that instead of the property now becoming the sole title to the claimant, as was the design of the mutually drafted wills, the home was now held in equal shares for both parties to enjoy, albeit through the framework of a constructive trust.
“It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its disposition.”
“[W]here the fiduciary duty is breached by such a voluntary disposition inter vivos of the property in question, the “crystallisation” of the floating obligation must occur at the moment of that disposition.”
“It would in my judgement be entirely inequitable now to frustrate Mrs Brown’s expectation and it was unconscionable for Mr Brown to seek to do so by his actions after her death in seeking to pass the flat to the First Defendant.”
“While it may be possible to construct a contract out of such elements, a claimant’s interest in such a case does not derive from contract, but turns rather on the acceptance of trust by the recipient and avoidance of a fraud on the beneficiary and testator”