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Module 4 - CONTINUED - Coggle Diagram

- - - - BIRMINGHAM V RENFREW
        
        Another oral agreement between the husband and wife that they would leave their property to each other and if she predeceased then the property would go to four named relatives of the wife and they agreed not to revoke the wills
        
        The wife had inherited a substantial amount of property from her uncles hence the terms of the will and she predeceased the husband
        
        The husband then revoked the will and made a new will which benefited his relatives rather than hers, you can revoke it and it could be admitted to probate, but the contract meant that you could not revoke the particular terms of that without the knowledge and consent of the other party, she has predeceased and therefore did not consent.
        
        High Court found both husband and wife had entered into a binding agreement not to revoke the wills once made without the knowledge of the other party, and not after death
        
        Constructive trust attached to the property – terms being those which husband agreed would be his last will
      - BIGG V QUEENSLAND TRUSTEES LTD
        
        mutual wills - separate testamentary instruments of two individuals in reciprocal terms
        
        need proof that the parties made an agreement to execute the wills in that form and that expressly or by implication that contracted not to revoke them
        
        contract rather than the form of the will that attracts relief at law or in equity
        
        testator in that case that his obligation not to revoke his will during her life without notice to her is to be implied for my part I do not see how it can be otherwise, there is not point in agreeing to make corresponding wills or mutual wills if the parties to such an agreement are free to revoke immediately after execution, by which I mean free in the sense of immune from the ordinary remedies available for breach of contract.
      - FLOCAS V CARLSON - essential elements: the agreement must be sufficiently certain and intended to be legally binding, the agreement must be one that is not revocable after the death of one of the parties and as is obvious, their agreement cannot prevent a grant of probate of a later will executed in breach of the agreement. Further, the agreement must be specifically enforceable, may be enforced by a third party beneficiary, and if the agreement concerns land it must comply with the Statute of Frauds, unless an exception to the Statute applies.
      - RE GOODCHILD - trust arises on the death of the first to die and therefore the rights of the beneficiaries under the will are not lost. The subsequent marriage does not effect the trust
      - SAME WILLS (MIRROR WILLS)
        
        simultaneous execution of a will in similar form is not sufficient in itself (Re Oldham) but may provide some evidence of mutual wills - evidence that you want is some form of agreement oral or written which both parties have knowledge of and consent to in relation to the making and not revoking the wills
        
        oral contract proved in Bauer v Hussey - will in the same terms; life interest to spouse, property on death equally between children of respective marriages; promises not to revoke wills; not to sell property during lifetime
      - MUTUAL WILLS - SOME ISSUES
        
        effect on estate for FPA
        
        effect of divorce and marriage - marriages revoke the whole will whereas divorce only revokes specific dispositions
        
        pre Barns it was thought to be a handy estate planning tool, where in you might be able to circumvent the FPA it may also be a way to make sure that vertical inheritance rather than horizontal inheritance. Mutual wills to ensure security over what happens after your death.