Birmingham v Renfrew

The case of *Birmingham v Renfrew* involved an appeal to the High Court of Australia from the Supreme Court of Victoria. The dispute concerned the enforceability of an alleged oral agreement between a husband and wife regarding their testamentary dispositions. The wife's relatives, who were beneficiaries under the husband's initial will, sought to enforce this agreement against the husband's executors after he had made a subsequent will that largely disinherited them.

The primary legal issues before the court were whether a binding agreement existed between the husband and wife concerning their wills, and if so, whether this agreement was enforceable in equity by the wife's relatives, despite them not being parties to the agreement. Additionally, the court had to determine if the agreement was rendered unenforceable by the provisions of the *Instruments Act 1928* (Vict.) (specifically section 128, concerning contracts for the sale of land) or the *Property Law Act 1928* (Vict.) (section 53, concerning the creation of trusts).

The High Court, affirming the decision of the Supreme Court of Victoria, held that the agreement between the husband and wife created a constructive trust that was enforceable in equity by the wife's relatives. The court reasoned that the agreement, by which the wife left her property to her husband in consideration of him leaving his property to her relatives, was intended to create binding obligations. Despite the husband's subsequent revocation of his initial will, the court applied the principle established in *Dufour v. Pereira*, that where parties make mutual wills based on an agreement, the survivor who benefits from the deceased's will is bound by the agreement and holds the property upon a constructive trust for the intended beneficiaries. The court further found that the agreement did not fall within section 128 of the *Instruments Act 1928* because it did not relate to specific property at the time of its making, but rather to the husband's property generally at the time of his death. Consequently, section 53 of the *Property Law Act 1928* was also inapplicable as it did not require constructive trusts to be manifested in writing.