Webb v Smith HC Tauranga Civ-2010-470-000264

[2011] NZHC 1512

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-000264

IN THE MATTER OF     The Law Reform (Testamentary Promises) Act 1949

AND IN THE MATTER OF the Estate of LOLA ETHEL WEBB

BETWEEN  ROBERT WILLIAM WEBB AND NICHOLAS ANDREW WEBB Plaintiffs

ANDPAMELA SMITH AND LAURENCE JOHN BRYAN AS EXECUTORS AND TRUSTEES OF THE ESTATE OF LOLA ETHEL WEBB

Defendants

Hearing:         23-24 June 2011

Appearances: W Nabney for the Plaintiffs

S Barter for the Defendants

Judgment:      14 October 2011

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 14 October 2011 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Simpson Aspen Law, PO Box 13537, Tauranga 3141

Barter & Co, PO Box 197, Albany, Auckland 0755

Counsel:       W Nabney, PO Box 13 007, Tauranga 3141

[1]      Robert and Nicholas Webb are the adult sons of John David Webb who died on 24 August 2007.  The defendants are the executors and trustees of the estate of

WEBB V EXECUTORS AND TRUSTEES OF THE ESTATE OF LOLA ETHEL WEBB HC TAU CIV-2010-

470-000264 14 October 2011

Lola Ethel Webb who died in July 2009.  They are also two of Lola Webb‟s children.

John married Lola on 5 October 1997.

[2]      This judgment concerns claims against Lola‟s estate brought by Robert and Nicholas Webb under s 3 of the Law Reform (Testamentary Promises) Act 1949 and in reliance on the equitable doctrine of Mutual Wills.

Facts

[3]      John Webb‟s first wife (Robert and Nicholas Webb‟s mother) died in 1991. Lola Webb had herself previously been married and had four children of that marriage, Diane Allan, Pamela Smith, Laurence Bryan and Roger Bryan.

[4]      Just prior to marrying Lola, John Webb sold what had been his previous matrimonial  home  and  moved  into  what  had  been  Lola‟s  matrimonial  home  in Yatton Street, Tauranga, over which there was no mortgage.  It was not clear on the evidence what became of the proceeds of the sale of John‟s house (approximately

$140,000) and in particular whether there was any co-mingling of Lola‟s and John‟s finances.  The evidence for the defendants was that Lola continued to pay the rates and outgoings and also paid for overseas holidays.

[5]      Neither Robert nor Nicholas attended John and Lola‟s  wedding in October

1997.  While they both gave reasons for their absence that day it seems moderately clear from the evidence that Robert in particular was not well pleased with  his father‟s remarriage.

[6]      In particular, at about the time of the wedding it seems that Robert wrote a letter, either to his father or (according to Robert‟s evidence) to Lola.  Although that letter has not survived, it was found by Laurence Bryan and his wife Roanne when they were clearing out John and Lola‟s house following Lola‟s death.  Their evidence was that they both read some or all of the letter (which they said was addressed to John) and then gave it, along with other of John‟s possessions, to John‟s younger brother, Derek Webb.

[7]      Derek Webb confirmed in his evidence that that is what occurred although his recollection of the contents of the letter was less clear.  He did, however, describe it as a “letter of annoyance” and said that it referred to John Webb not having received enough money for the sale of his house.  Derek Webb thought, but was not certain, that the letter was addressed to John and in my view that is almost certainly the position because there was no other reason for Laurence and Roanne Bryan to have considered  that  John‟s brother  might  have  some  interest  in  it.    In  any  event, Derek Webb threw the letter away at some subsequent point.

[8]      As to the more detailed contents of the letter, Laurence and Roanne Bryan‟s evidence was that it was an unpleasant missive in which Robert Webb was critical both of his father‟s decision to sell his house at what Robert considered to be under- value and of his recent marriage to Lola.  Both said that it also made reference to

$40,000 that had previously been given or lent by John to Nicholas, and to Robert‟s view that his father should have kept quiet about this.   I interpolate here that a number of the witnesses for the defendants (including, but not limited to, Laurence and Roanne Bryan) said that during John Webb‟s lifetime, he had mentioned that such a loan had been made, that it had not been repaid and that he had had to “even things up” by giving Robert a similar amount.   Both Robert and Nicholas Webb denied, however, that they had received any money from their father after his marriage to Lola.

“Lola’s” letter and its authenticity

[9]      It is Lola‟s response to the “lost” letter from Robert that forms the centre- piece of both the testamentary promises claim and the mutual wills claim.   That response took the form of a letter addressed to Robert Webb that had been typed on a manual typewriter. This letter was in evidence before me. It said:

Dear Robert,

Thank you so much for your letter.  Yes, I do look knocked about a bit.  I‟ve got stitches in my forehead, a bone broken in my nose and two beautiful black eyes.  However, I was lucky the plate glass window didn‟t break when I hit it or things would have been a lot worse.

I‟m glad you wrote because it is always better to get things out in the open.

It was a sadness to your dad (and to me) that you were not at the wedding.  It was a very happy day and I assure you there was never any thought of a „3rd Degree‟ from our friends. Your presence would have made a happy occasion perfect.

Now to answer some of your points...  I am not quite clear about the $40-50 thousand dollars your dad has given to a stranger.  If I am the stranger you are referring to let me put your mind at rest.  Definately (sic) NOT true. As a matter of fact we have just made out our will with Michael Stemmer (Solicitor) putting all our assets, i.e. your dad‟s money from his house and my money and house in our joint names.  When we die the whole estate will be divided in two.  Half will be for my four children and half for you and Nicholas.  If you look at that you will see that you and Nicky will get more than my children.

Your mother Frances was a good friend of mine.  I took Communion with her every week until her death.

John and I were friends for a long time before we began to feel a stronger affection for each other.  We have such a lot in common.  We like the same things and we have the same friends.  We were both living very carefully on our respective Supers and we finally decided to pool our resources and live in one house.  Mine seemed to be the most convenient... a flat walk to the shops, near the Park and close to you.   (Your dad was looking forward to seeing more of his grandsons)

I wouldn‟t like you to think for one moment that I ever wanted to take your mother‟s place.  My grand children all call your dad John and they love him already.  I would be happy for you and the boys to call me Lola and I hope you will all learn to love me too.

You and Judith and the boys will always find a warm welcome here.  Our greatest joy will be if you drop in to see us any time, day or night.

I think half of the trouble between you and your dad is that he cannot always hear what is said.  Be patient my dears.  We all grow old, and believe me he does love you very much.

Lets put all this behind us and start over.  John and I are so happy and we want you all to be right there with us.

Love

Lola

[10]     The letter was not signed and the defendants dispute its authenticity.  For that reason, they objected to its inclusion in the common bundle by reference to the grounds set out in High Court Rules 9.14(b) to (f).

[11]     It is not, however, my understanding that the defendants allege that the letter was “forged” or somehow manufactured by the plaintiffs for the purpose of their present claim.  Rather, authenticity is questioned because (the defendants say) it was not written by Lola Webb.  As I have said, it was not signed by her (or by anybody). The hypothesis advanced by the defendants was that the letter was in fact written by John Webb.  If that is so, it could not, of course, constitute a testamentary promise made by Lola, although it might (even if written by John) arguably constitute evidence of an intention by John and Lola to execute “mutual wills”.

[12]     At this point, I also record that it does not seem to be in dispute that the letter in the form in which it was received was not dated.   Rather, it appears that the handwritten date that is now at the top of the letter was placed there by the recipient of the letter, namely Robert Webb and/or his wife.   An issue was raised by the defendants about whether the date of 25 October 1997 was put on the letter some considerable time later, possibly even after the commencement of this litigation.  But the surrounding evidence suggests to me that (regardless of the identity of the author of the letter) the letter was indeed written and received at around that date.

[13]     The principal reason that the authenticity of the “Lola” letter is disputed is because just before 25 October 1997, Lola had been involved in an accident.  As a result, she had suffered injuries to her face which meant that she could not wear her glasses and therefore could not see to write or, indeed, to type.  It was also alleged by the defendants that there was no typewriter in John and Lola‟s house and that, although she was accustomed to typing lists and other documents for her church and community  activities,  she  would  ordinarily  do  that  at  the  church  hall.    The defendants also said that Lola would have always handwritten a letter of such a personal nature and also would have dated and personally signed such a letter.  They said that Lola would not have made grammatical and spelling mistakes.  It was also submitted that the letter appears to be factually inaccurate insofar as it says that:

(a)       John and Lola had, or would, pool their resources; and

(b)      John and Lola had recently made wills with the solicitor, Mr Stemmer

(there is no record of the existence of such wills).

[14]     I accept that there is extrinsic evidence establishing that Lola had an accident (for which an ACC claim form was completed) on 20 October 1997, that is five days before the date that was put on the letter by Robert‟s wife.  The letter itself of course, also refers to the accident and to the facial injuries Lola suffered as a result.

[15]     The suggestion that the letter was written by John Webb is consistent with the fact that the initiating letter from Robert Webb was addressed to him.  While it is not clear whether John could type, Robert Webb said in evidence that his father owned two typewriters.   The defendants said, however, that there were no typewriters at Lola‟s house.  Be that as it may, the proposition that John could have typed the letter but pretended that it was from Lola seems to me to be inherently improbable.  No possible reason why he might have done that was suggested to me.

[16]     Furthermore, while I accept that the fact of Lola‟s injuries suggest that it may have been difficult for her to see to type the letter, it may be that they also explain a decision to type rather than to hand-write it.   The evidence did not establish how long it was after the accident before Lola could wear her glasses and it seems to me that it is quite possible that she was able to do so by (say) 24 October.  As well, the substance of the letter appears consistent with the evidence I heard about the kind of person Lola was; the tone is generally loving and conciliatory.

[17]     Although it was not put to me in these terms, the Court is able to draw reasonable inferences of authenticity and identity not only from relevant extrinsic evidence but also from the letter itself.[1]     After taking into account the extrinsic evidence, I consider that a reasonable inference can be drawn that Lola was the

[1] Evidence Act 2006, s 13.

author of the letter.

John’s and Lola’s wills

[18]     On 5 February 1998, a few months after their wedding, John and Lola each executed a will.  Each directed that the Public Trustee was to deal with the residue of the respective estates by:

(a)       transferring it to the surviving spouse; or

(b)(in  the  event  of  the  other  spouse  having  earlier  died)  dividing  it equally amongst the two Webb children and the four Bryan children.

[19]     These wills did not in fact precisely reflect the contents of the October 1997 letter because they direct that each child is to receive one sixth of the residue.  By contrast, Lola‟s letter suggested an intention that Robert and Nicholas would receive one quarter of the residue each and the Bryan children would receive one eighth.

[20]     In August 2001, and on 3 October 2005, John and Lola made further wills in materially the same terms as the 1998 wills.

[21]     Evidence was given by Mr Barns of the Public Trust about his dealings with John and Lola Webb over these wills and the Public Trust‟s general practices in relation to mutual wills.  He said that the Public Trust has “a distinct procedure” if clients wish to execute mutual wills.  He said that this procedure involved a specific discussion with the relevant clients about the irrevocable nature of such wills, and that if, having received that advice, the clients still wished to proceed:

(a)      a recital would be included in the wills themselves which would acknowledge that the wills were intended to be mutual wills; and

(b)there would also be an additional document (usually a Deed) signed by the parties at the same time, recording the irrevocability of their agreement to make mutual wills.

[22]     Although Mr Barns could not precisely remember the detail of his meetings with John and Lola, he said that the existence of these procedures meant that:

...

[he was] quite sure that [he] neither discussed, nor advised John and Lola that the wills they were making were mutual wills ...

[23]     There is of course no recital included in any of John‟s or Lola‟s wills to the effect that they were intended to be mutual wills and nor is there any kind of separate document or Deed recording such an intention.

[24]     Less than two weeks before John‟s death, Lola made another will.  In it, she

relevantly stated:

I GIVE the sum of TEN THOUSAND DOLLARS to DEREK SIDNEY WEBB.

I GIVE the sum of FIVE THOUSAND FIVE HUNDRED DOLLARS to each of my stepsons ROBERT WILLIAM WEBB AND NICHOLAS ANDREW WEBB.

I GIVE the balance of my estate ... to my trustee UPON TRUST:

...

To vest the residue ... in my children LAWRENCE JOHN BRYAN, ROGER DAVID BRYAN, DIANE ALLAN and PAMELA SMITH as tenants if common in equal shares

...

I RECORD that before I signed my Will my solicitor advised me of the provisions of the Family Protection Act 1955 and that I have given careful consideration to my family responsibilities.   I am of the opinion that the distribution of my estate in the terms of my Will is just, fair and equitable in all the circumstances now known to me.   I note that my stepsons have received funds and other provision from my husband JOHN DAVID WEBB during his lifetime.

[25]     As I have said, John died on 24 August 2007.  There was no evidence before me about the administration of his estate or what it contained.   Whatever residue there was, however, presumably passed to Lola in terms of his 2005 will.  There was no evidence about any conversations between either Robert or Nicholas and Lola at this time about John‟s estate or about the possibility of a claim by them under the

Family  Protection Act.    In  fact,  Robert  confirmed  in  evidence  that  he  had  no

discussion with Lola but just assumed that “everything was in place”.

[26]     Lola executed further wills in materially the same terms as her will of August

2007, on 21 May 2008 and 5 August 2008.

[27]     Both Robert and Nicholas denied having received monetary gifts, loans or other assistance from their father after his marriage to Lola.   By contrast, the defendants were adamant that such gifts (or loans that were not repaid) had been referred to on a number of occasions by John and/or Lola.   As I have said, the evidence of Laurence and Roanne Bryan was also that the letter to John from Robert had referred to a gift of money to Nicholas.

[28]     It is against this factual background that I turn now to consider the legal merits of the two claims made by the Webb brothers.

Claim under s 3 of the Law Reform (Testamentary Promises) Act 1949

[29]     The substantive part of s 3 of the Act is found in subsection (1) which provides as follows:

(1)    Where in the administration of the estate of any deceased person a claim  is  made  against  the  estate  founded  upon  the  rendering  of services to or the performance of work for the deceased in his lifetime, and  the  claimant  proves  an  express  or  implied  promise  by  the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other   persons   in   respect   of   the   estate,   whether   as   creditors,

beneficiaries, wife, husband, civil union partner, children, next-of-kin, or otherwise.

[30]     In Samuels v Atkinson[2] the Court of Appeal summarised the requirements of subsection (1) in the following way:

[2] Samuels v Atkinson [2009] NZCA 556, [2010] NZFLR 980 at [34].

[34]   The central principles of the testamentary promises jurisdiction are that: a claimant must have rendered services to or performed work for the deceased in his or her  lifetime; the claimant  must prove  either that the deceased made an express promise to reward him or her for such services or work by making some provision for that claimant by will, or that such a promise may be implied; the promises must be linked to the services; and reasonable provision has not been made.

[31]     In terms of the relevant “promises” the plaintiffs‟ first amended statement of claim pleads as follows:

The plaintiffs were informed by their father that it was the intention of both himself and Lola to combine their assets for their own use and enjoyment whilst at the same time preserving an inheritance for both the children of Lola Ethel Webb and himself.

The plaintiffs were further informed by their father that it was the intention that upon the death of the survivor of the marriage that the estate would be divided equally between the children of Lola Ethel Webb and himself.

... Robert William Webb receipted a letter from Lola Ethel Webb (step- mother) dated the 25th  of October 1997 confirming his father‟s advice that when both deceased that the survivor‟s estate would be divided in two with half  for  Robert  and  his  brother  Nicholas  and  the  other  half  for  Lola‟s children.

[32]     It  can  immediately  be  noted  that  any  legal  significance  placed  by  the plaintiffs on promises that may have been made to them by their father is misconceived.    Any  relevant  testamentary  promise  must  have  been  made  by Lola Webb.   Thus the only relevant pleaded promise is that which is said to be contained in the October 1997 letter, which was received by Robert.  That this is so was confirmed in the plaintiffs‟ response to a request for further particulars dated

22 June 2010.

[33]     The services rendered or work performed by the plaintiffs in return for Lola‟s

promise are not expressly pleaded.  Rather, the claim simply states:

That the plaintiffs relied entirely on the promise of their father and the promise  of  their  stepmother,  Lola  Ethel  Web,  that  on  the  death  of  the survivor of the marriage, that the estate would be divided equally between their respective children.

That in reliance on this promise neither plaintiff contested the provisions of

their father‟s Will, which left the entire estate to Lola Ethel Webb.

[34]     The way in which this aspect of the pleading is framed is, in my view, telling. Even accepting that the type of promise contemplated by s 3(1) need not be contractually enforceable[3] it seems to me that the concept of some form of mutuality is nonetheless a pre-requisite to the applicability of the provision.  Such mutuality is, I think, materially different from the one-sided notion of “reliance” that has been pleaded.  That said, however, the notion of “reliance” is undeniably apt on the facts

[3] See McCormack v Foley [1983] NZLR 57 (CA); Tucker v Guardian Trust and Executors Co [1961] NZLR 773 (SC) at 775.

of this case, where it is undisputed that the relevant promise predated the rendering

of any “service” by nearly eight years.

[35]     So  even  assuming  that  the  plaintiffs  could  establish  that  they  made  a conscious choice not to contest John Webb‟s will[4]  and that that choice (without more) could constitute the rendering of “services” in terms of s 3(1)[5] it seems to me that the requisite nexus or link between such “services” and Lola‟s promise is absent from this pleading and on the evidence.   More particularly, it seems to me that Lola

[4] An assumption that is in my view not borne out by the evidence here, which does not support the existence of any positive intention to challenge John‟s estate. Rather the evidence suggests that the plaintiffs simply did nothing when John died.

[5] This is also not an obvious assumption to make in this case.  Mr Barter was at pains to stress, for example, that a proper interpretation of the relevant cases meant that the focus should be on the existence, and recognition, of a positive benefit to the promisor, rather than merely the implicit absence of a detriment.

would need at least:

(a)       to have been aware of any act of forbearance by the Webb brothers; (b)        to have recognised the benefit of that forbearance to her; and

(c)       have made a connection in her mind between that benefit and her earlier promise.  In my view none of these are established on the

evidence.

[36]     For this reason alone, I consider that the testamentary promises claim cannot succeed.   However, this conclusion may be further fortified by reference to the following matters:

(a)      neither Lola‟s nor John‟s wills ever actually reflected the promise set out in the October 1997 letter;

(b)Nicholas Webb accepted in his evidence that he did not know about and   had   never   seen   the   October   1997   letter   prior   to   the commencement of these proceedings;

(c)      there was no evidence that John and Lola had co-mingled their affairs and resources or about whether John‟s estate had any content or value at the time of his death;

(d)there is no independent evidence of any forbearance by the brothers from  making  a  claim  against  John‟s estate;  for  example  there  is nothing to suggest that either of the brothers ever sought legal advice about such claim;

(e)      any  claim  by  them  on  John‟s estate  would  have  been  far  from straightforward  and,  because  John‟s name  was  not  on  the  title  to Lola‟s Yatton Street property, would have first required an application for leave in order to obtain an order determining his share under the Property (Relationships) Act 1976.  The threshold for the granting of leave is high;[6]

[6] Mr Barter forcefully submitted that the legal impediments to a claim by the brothers against John‟s estate was relevant in assessing whether there had been any relevant forbearance. I am prepared to accept that the legal reality of any possible claim is a matter that can be considered in that context.

(f)       there is no evidence that Lola knew that the plaintiffs had forgone the

possibility of making of a claim on John‟s estate; and

(g)there  is  no  evidence  that  Lola  renewed  her  1997  “promise”  after John‟s death and indeed her August 2005 will makes it clear that she had resiled from it prior to any act of forbearance by the plaintiffs.

[37]     In my view, the plaintiffs‟ testamentary promises claim must fail.

Mutual wills claim

[38]     Because Lola‟s  last will was made before 1 November 2007 the “mutual wills” provision in the Wills Act 2007 (s 30) does not apply (by virtue of s 40(2) of that Act).  Accordingly, it was agreed that this aspect of the plaintiffs‟ claim is to be determined in accordance with the equitable doctrine of mutual wills.

[39]     Although Mr Barter helpfully took me through a number of authorities (both ancient and modern) it is, I think, sufficient to refer only to the decision of the New Zealand Court of Appeal in Lewis v Cotton[7]  and of the NSW Court of Appeal in Baird v Smee.[8]

[7] Lewis v Cotton [2001] 2 NZLR 21 (CA).

[8] Baird v Smee [2000] NSWCA 253.

[40]     In Lewis, Blanchard J for the Court of Appeal relevantly said:

[42]   While there is still some uncertainty about the legal theory underlying the [Mutual Wills] doctrine, some points are tolerably clear. A will maker can always revoke his or her will even if non-revocation has been contractually promised, for a will is by its very nature and in its very essence a revocable instrument (Vynior’s Case (1609) 8 Co Rep 81b at p 829; In the Estate of Heys [1914] P 192 at p 197). But the consequence of the promise may be that the executors and trustees of any replacement will, if it becomes operative upon the death of the testator, will be required to hold the affected assets upon a constructive trust in terms of the revoked will. In Birmingham v Renfrew (1936) 57 CLR 666 it was said by Dixon J that it is the trust arising from the course of conduct which is enforced, not the contract itself. In Re Dale, Decd [1994] Ch 31 at p 41 Morritt J quoted the remark of Lord Camden LC in Dufour v Pereira that “a man may so bind his assets by agreement, that his will shall be a trustee for the performance of his agreement”.

[43]   Where “mutual wills” have been made the promise may be said to be either (a) not to revoke at any time whether secretly or openly (Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11; Re Newey (Deceased) [1994]

2 NZLR 590 at p 593); or (b), more normally, not to revoke secretly during

the other will maker's lifetime, thus depriving the other person of the ability to adjust his or her own will, and, secondly, not to revoke at all after the other's death, which event of course makes the other's promise truly irrevocable. Although there tends in the cases to be a concentration on non- revocation, Associate Professor Cassidy points out at p 34 that the obligation not to deal with property contrary to the agreement or understanding is the crux.

...

[45]   It  would  seem that for equitable enforcement consideration in the strict sense is unnecessary. It would in any event, if necessary, be provided by the mutual promises and the execution of the wills. It has been said that consideration continues to be given by each party while both wills remain unrevoked (Re Dale). In Birmingham, however, it was said to be the death of one of the parties leaving his will in the agreed form which constituted the consideration. If that analysis is correct, there would presumably have been no earlier consideration because each will was revocable until one died. In this sense the death executed the contract between the parties.

[46]   A  promise  not  to  revoke  (or  not  to  deal  with  property  in  an inconsistent manner) may be express or may be implicit from what the parties have said and done, including of course the terms of the two wills. However, there must be more than mere consultation and coordination between the testators and more than a mere agreement or arrangement between them that they will proceed to make their respective wills in a particular way. Such an agreement does not restrain the right to revoke (Gray v Perpetual Trustee Co Ltd [1928] AC 391 at p 400). What is required to bring into play the doctrine of mutual wills is proof of an agreement intended to bind the two testators to a future course of inaction – that the wills shall remain unaltered, as Mr Judd said in this case, “come what may”, or at least in agreed circumstances. In Gray at p 400 the Privy Council said that:

“. . . the mere fact of making wills mutually is not . . . evidence of such an agreement having been come to. And without such a definite agreement there can no more be a trust in equity than a right to damages at law.”

[47]   In Birmingham at pp 674 – 675 Latham CJ commented:

“Perhaps most husbands and wives make wills „by agreement‟, but they do not bind themselves not to revoke their wills. They do not intend to undertake or impose any kind of binding obligation. The mere fact that two persons make what may be called corresponding wills  in  the  sense  that  the  existence  of  each  will  is  naturally explained by the existence of the other will is not sufficient to establish a binding agreement not to revoke wills so made . . ..”

See also Evatt J at p 692.

[48]   Any such commitment is unlikely and undesirable in modern times, which explains why true “mutual wills” are now so very infrequently found. Indeed, they have never been at all common. There are preferable ways of achieving  the  intended  result  without  the  unfortunate  inflexibility  which

might,   if   found   to   exist,   fail   to   allow   for   significant   changes   in circumstances, including the impost of changes to duties and taxes.

[49]   As  a  result,  the  Courts  are  very  slow to  find  “mutual  wills”  just because the parties have made corresponding wills. We agree with Anderson J's  view  about the assumption  normally underlying the wills  of  married couples in this country ... . For a particularly hard case of rejection by a Court of the notion that corresponding wills indicate an agreement or arrangement that the survivor will not revoke see Re Oldham; Hadwen v Myles [1925] Ch 75.

[50]   The standard of proof for a party asserting the existence of mutual wills is the ordinary civil standard of proof on the balance of probabilities, but the claim must be scrutinised with very great care, as with all claims to the property of deceased persons (Re Cleaver; Re Newey).

...

[52]   It would seem to be a matter of little practical consequence in most instances whether one says that what is required is an agreement or an arrangement or an understanding. Some leading cases, including the decision of the Privy Council in Gray, that of the High Court of Australia in Birmingham and the recent decision of the English Court of Appeal in Re Goodchild (deceased), say that there has to be a contract. A formal legal contract is not needed. A contract made without formality is enough. Re Cleaver speaks of a “contract or clear understanding” and Dixon J in Birmingham  at  p  683  quotes  with  approval  a  passage  from Hargraves's Juridical Arguments and Collections (1799) which speaks of “mutual engagement”. It could hardly be less than this. The crucial factor must be that the terms of the mutual engagement, however it was reached, are sufficiently  certain  that  the  Court  can  see  its  way  to  enforce  them  (Re Oldham at p 86).

[41]     The Australian  decision  in  Baird  does  not  suggest  a  different  approach. Rather, it is notable in the present context because there, the Court expressly:

(a)      took into account the fact that the relevant wills were prepared by an officer of the Public Trust; and

(b)confirmed that no inference could be drawn in favour of the existence of mutual wills simply because the testators each had children from prior marriages.

[42]     As regards the former matter, the Court said:

[16]   The wills were prepared by an officer of the Public Trustee. Had such officer  been  instructed  to ensure that  the  survivor  could  not  revoke  the mutual will, then one would expect the matter to have been put beyond

doubt by provision to that effect in the wills or in a contemporaneous memorandum (see Re Newey (Deceased) at 594-5).

[43]     And as regards the latter point the Court said:

[35]   My initial reaction in this case was that where spouses each have children from an earlier marriage, the making of mutual and reciprocal wills established  a  case  which  spoke  for  itself  and  was  sufficient  proof  of  a contract. This indeed was the view of Isaacs J in Hudson v Gray [1927] HCA

31; (1927) 39 CLR 473, which was the subject of the appeal in Gray v

Perpetual Trustee Co Limited [1928] AC 391. ...

[36]   That view did not prevail in the Privy Council and the law has been settled to the contrary ever since. There is no support in the cases for raising an implication of a binding contract from the mere fact that the parties have children from prior marriages.

[44]     On the basis of established authority, then, it seems to me that the central issue is whether Lola had expressly, by agreement or by her conduct, bound herself not to change her will after John‟s death (or, secretly, before his death) in a way that reduced the inheritance of Robert and Nicholas.

[45]     As noted by the Court in Lewis the onus of proof in such cases is the civil onus, but it is not easily discharged.  In Birmingham v Renfrew (above) at 674, Latham CJ said:

Those who undertake to establish such an agreement assume a heavy burden of proof. It is easy to allege such an agreement after the parties to it have both died.

And, similarly, Dixon J said at 681:

Such  an  agreement  can  be  established  only  by  clear  and  satisfactory evidence.

[46]     In my view, it cannot be said that such “clear and satisfactory” evidence exists in this case.  The fact that Lola and John made “corresponding” wills in 1998 is unsurprising in the circumstances and, as the cases make clear, far from determinative of the mutual wills question.  I have no doubt that the 1998 and 2005 wills reflected an agreement by them to make their wills in a particular way and that the wills reflected their mutual intentions at the time.  But it does not by any means follow that they were committing themselves to the irrevocability of the will of

whichever of them survived the other.   Significantly, Mr Barns‟ evidence was that there  was  no  discussion  to  this  effect  with  the  Public  Trust,  and  that  such  a discussion would certainly have taken place had John and Lola indicated a wish to set matters in stone.   The absence of any such discussion is in my view a strong indication that irrevocability after the “first dier‟s” death was not within their contemplation. Nor of course is there any indication of irrevocability on the wills themselves or in any separate document.

[47]     As for Lola‟s 1997 letter, I have already noted that it does not in fact reflect the terms of the corresponding wills that were executed by John and Lola some four months later.  Nor does it say anything about irrevocability.  Its principal focus and purpose was conciliating the contemporary rift between John and Robert.  At best, it can be interpreted as reflecting Lola and John‟s shared intention on the date it was written and in the circumstances as they then perceived them to be.

[48]     In my view the mutual wills claim must also fail.

[49]     The plaintiffs are to pay the defendants‟ costs on a 2B basis in the ordinary way.

Rebecca Ellis J