Baird v Smee

This case concerned an appeal from a decision of the Supreme Court of New South Wales regarding the existence of a mutual wills trust. The appellants were the children of Derek McDonnell from a previous marriage, and the respondent was a child of Gwendoline McDonnell from a previous marriage. Derek and Gwendoline, who were married to each other, executed wills on 12 March 1986, prepared by the Public Trustee. Derek's will provided for his estate to go to Gwendoline if she survived him by 30 days, with a further provision that if she predeceased him or died within that period, his estate was to be divided equally between his children (the appellants) and Gwendoline's children (including the respondent). Gwendoline's will contained similar provisions. Derek died on 15 March 1986. Subsequently, Gwendoline changed her will, and upon her death, the appellants sought to establish that the original wills were mutual and that a trust arose in their favour.

The primary legal issue before the court was whether the original wills executed by Derek and Gwendoline McDonnell on 12 March 1986 were mutual wills, and if so, whether a trust was imposed on Gwendoline's estate for the benefit of the appellants. This required the court to determine if there was a binding agreement between Derek and Gwendoline not to revoke their original wills, and if such an agreement was intended to have legal effect.

The court reasoned that the mere fact that two persons have made wills that are identical or reciprocal in their provisions does not, of itself, establish the requisite agreement for mutual wills. The court emphasised that an agreement not to revoke wills must be clearly established and should not be lightly inferred. In this instance, the court found that the evidence presented, including the wills instruction sheet and the wills themselves, was insufficient to infer the existence of such an agreement. The instruction sheet contained no mention of mutuality or an agreement to make mutual wills, and the dispositive provisions, while reciprocal, did not inherently demonstrate a concluded agreement to be legally bound not to alter them.

The appeal was dismissed with costs.