STEP Qld Annual Trusts and Estates Conference, 2 September 2016, Rosalind F Croucher AM*
[Professor Croucher spoke to this paper, so the audio does not correspond precisely to the text below]
Of Ancient and Modern
When ‘ancient’ and ‘modern’ are coupled in the same sentence it reminds me of the hymn book, Hymns Ancient and Modern. Our topic today has nothing to do with hymns, but is about how old ideas continue (like good hymns) and have relevance in new contexts.
I first got seriously interested in unravelling the ‘ancient’ part of mutual wills, during a sabbatical undertaken in London in the first months of 2003. I wanted to uncover the true history of the case that was the fons et origo of the doctrine of mutual wills as it became known in the common law, Dufour v Pereira (1769). The journey took me to the reading room of the Public Record Office, in Kew, and into the wonderful mysteries of the court records. It was easy to be distracted by the work of others, especially those working on the Tudor Rolls, in white gloves, and serious posture, with special props and weights for these treasured tomes. The 18th century court documents I was looking at were large, vellum sheets, inscribed in at least something of a modern script.
The case of Dufour v Pereira involved two people making promises about their wills to ensure that their family would benefit in a particular way after each of their respective deaths. It is the same family story then as now. The configuration of the family that prompts it may have a distinctly ‘modern’ flavour, often included in the armoury of estate planning in the context of second or third family restructurings. In an era of serial monogamy, mutual wills have provided a mechanism for protecting the property brought into a marriage for the benefit of selected relatives — usually respective children of prior relationships — while providing rights of enjoyment during the survivor’s lifetime. They are often made between husband and wife, particularly in second or later marriages and where there have been children through earlier relationships. It is either a dynastic exercise (usually expressive of concern to ensure that property ‘stays within a family’) and/or one that is meant to ensure provision for the surviving spouse. It is an exercise of ‘family property’ in a broad sense. The object of mutual wills in the contemporary context is typically to give the survivor reasonably free enjoyment of the property but to preserve something for the children of the prior relationship, rather than the property going to other relatives of the survivor. Although the doctrine itself is over two centuries old, it has proved remarkably adaptable to contemporary situations of step-families. Because it operates as a trust, it lacks flexibility when families change; but this is also its strength in governing the enjoyment of property post-mortem. It provides a kind of insurance against the fickleness of changing affections. It is one of a range of solutions devised in a common law system in the absence of a notion of community of property in marriages typical of civil law jurisdictions.
The enforcement of the promises through the medium of a constructive trust has been at the heart of the doctrine. In this way the doctrine functioned as a form of private ordering of property in a context that operated to the benefit of third parties. Third parties? What about privity of contract? Good question. Dufour preceded the settling of the doctrine of privity of contract in 1861 with its aversion to third parties who were not ‘privy’ to the bargain. That mutual wills survived, was, is some ways, an anomaly, although the evolution of equitable doctrine has rather caught up with it.
In this presentation I want to tell you the story of Dufour, leaving the copious detailed notes in support of the story in my article that was published in the Melbourne University Law Review in 2005, and then to set it in its modern context, with some recent confirmations as to how the doctrine might yet work.
Of Dufour v Pereira
Dufour v Pereira was a curious and novel case. It was not only the first consideration in English law of a joint will, but it was also ‘mutual’; its factual connection was substantive as well as the physical. While a regular feature of civil law, the mutual will was unknown to English law, until this case.
There are two reports of this case: one in the Dickens reports, reproduced in the English Reports, and a more detailed report first published in 1799 by Francis Hargrave. Hargrave transcribed the case verbatim from Lord Chancellor Camden’s own handwritten notebook, containing five judgments.
There is some discrepancy in the name of the case, but this is not particularly unusual as divergence in spelling was not uncommon at the time. In Hargrave it was ‘Dufour v Perraro’, in the Chancery Bills ‘Dufour v Peraro’, but I will stick to the name it is given by Dickens, ‘Dufour v Pereira’, because it is in this form that it has consistently been referred to subsequently.
To piece together the factual narrative of the Ranc wills and the Ranc family I had to use several sources, including: the remarks of one of the counsel in the case, Alexander Wedderburn, who later, as Chancellor Lord Loughborough, recalled aspects of the case in giving judgment in Walpole v Orford in 1797; the will itself; and the surviving Chancery papers. This is the story (in simple form).
On 21 November 1745, René Ranc and his wife Camilla made a joint will, expressed to be their ‘mutual testament’. They were French speaking (the will was in French); and they had come to England from France or Geneva — probably as Huguenot refugees, married in England and lived there for the rest of their lives. Being ‘used to the customs’ of their previous domicile, and because it was ‘usual in foreign countries’, they used the form of the joint and mutual will, a familiar form. It was also witnessed by a Notary Public echoing the civil law manner. It was familiar and perhaps, given their background, it was an expected form of will. To English eyes, it was new. There are lots of fascinating questions about the case. Today we will just look at the doctrine for which the case has become known.
Camilla Ranc had been left, as she described it, ‘considerable personal estate’, under the will of her aunt, Mrs Mary de Tudert, who died in May 1740. It seems that they wished to take this into account to ensure an appropriate scheme of distribution for their children. The principal aspects of their testamentary scheme were a gift to the survivor of them of a life interest in each other’s property and a scheme for the disposition of the remainder on trust on the death of the survivor.
The will appointed as trustees John Anthony Sullin, Peter Tollet and Daniel Vernezobre. The whole of the residue of the estate, real and personal, was left to the trustees to pay to Mary Rigail, the daughter of René and Camilla, to her separate use, an income of £150 for life for the maintenance of Mary and her children ‘born and to be born’. The rest of the income of the residue was to be divided in equal portions amongst all the children of Mary Rigail to be paid at 21 years with allowance for maintenance in the meantime.
Piecing the information together from the later Chancery papers, it appears that, in addition to her daughter Camilla, Mary Rigail had another child after the date of the will, a daughter Susanna; and the named son, René Rigail, died without issue; so that the only surviving children of Mary Rigail who would be entitled to the remainder gift in the will were Camilla and Susanna Rigail. (It is a little confusing that Mary named her first two children after their grandparents).
René Ranc died in September 1749. His widow, Camilla Ranc, proved the joint will as sole executrix in December. The pleadings stated that she then transferred all the stocks into her name and ‘possessed herself of the rest of the estate and enjoyed it during her life’.
On 5 May 1760 Camilla made a new will, followed by a codicil dated 3 November 1763. By these she left legacies to her grand-daughter Susanna Rigail and to Mary’s second husband, Anthony Peraro (her first husband Philip Rigail having died in August 1761); £600 South Sea Annuities to her grand-daughter Camilla, now the wife of William Dufour; and the residue of her estate to her daughter Mary ‘for her own proper and absolute use and benefit’. She also revoked all prior wills. The principal effect of this new scheme was to cut out the residuary gift to the grandchildren.
The litigation which became known as ‘Dufour v Pereira’, began before Camilla Ranc’s death when grand-daughters Camilla Dufour and Susan Rigail filed a bill in Chancery in August 1764 against their mother, Mary, and her husband, Anthony Peraro. They claimed that their mother and their step-father (Peraro) had ‘converted, applyed and disposed of the personal estate of [their grandfather]’ — that is, that they had cheated them of their inheritance.
Camilla Ranc died in September 1764, almost fifteen years after René. What should they do about the wills? The family evidently came to an agreement on 19 June 1765 that Daniel Vernezobre one of the surviving executors named in the mutual will, should seek a grant of it; that Mary Peraro should prove her mother’s later will and codicil, and that the matters in issue should be tested in Chancery. Consequently there was a grant of probate of the joint will to Vernezobre, on 20 December 1765, with power reserved for making a similar grant to John Anthony Sullin, the other surviving substitute executor named in the will, who resided out of the jurisdiction; secondly, the later will and codicil of Camilla Ranc was proved on 17 December 1765 by Mary Peraro, formerly Rigail, and the sole surviving executor of the later will.
The principal part of the litigation tested the right of Camilla Ranc to leave her property contrary to the mutual will: that is to her daughter Mary Peraro, and not to her grandchildren, Camilla Dufour and Susanna Rigail. This was, as Hargrave said, the ‘great point of the case’. The principal argument for the granddaughters, Camilla and Susanna, was that the mutual will was ‘a good and firm will’ and that it could not be revoked after the death of the first of the testators to die: that it was ‘strongly irrevocable’ by their grandmother after the death of their grandfather René Ranc. Mary Peraro (their mother) responded that a will was in its nature revocable. (There was a further argument about Camilla’s capacity, as a married woman, to make a will during her marriage — but I won’t look at that today. Suffice it to say that it caused no problem for Lord Camden).
In making his judgment in Dufour v Pereira Lord Camden clearly recognised that it was an important case: he took time to consider all the evidence; and it was one of only five written judgments that he left in his court books. Hargrave said that it was written ‘with apparent anxiety to express the reasons of his judgment strongly, and in a manner which shews that he called forth his best energies to impress conviction’. The eloquence of the judgment also struck Lord Loughborough, in speaking of it in Walpole v Orford.
The will, while in civilian form, was also in terms that reflected English law: it ensured, for example, that the provision for the married daughter was for her separate use, reflecting the need for the creation of ‘separate’ property in equity for married women in England. It was, in a sense, a hybrid: a combination of civilian form with common law structures. The law that Lord Camden applied to solve the case was also a hybrid: drawing into common lawideas from the continent.
Lord Camden acknowledged that the mutual will was a particular thing and examined the issues closely, recognising that he was formulating new principles. A mutual will was, he stated, ‘a mutual agreement’: it was a contract and he found the evidence of the agreement in the instrument itself. The consideration for the agreement was the reciprocity of provisions — each set of dispositions was made in consideration of the other. Having established that there was a binding agreement, the key question was the extent to which either René or Camilla Ranc could make a new will — the question as to revocability.
Lord Camden distinguished between the will as a document for probate purposes; and the will as an expression of an agreement, or ‘compact’. With respect to the probate aspect he concluded: ‘a will is always revocable, and the last must always be the testator’s will’. So the fact that Camilla Ranc had made a new will meant that it was this that was admissible to probate. The grant of probate to Mary Peraro was therefore a valid grant.
The critical question for the Chancellor, however, was not whether Camilla Ranc’s later will was admissible to probate, but rather what was the effect in equity of the agreement embodied in the earlier mutual will? He concluded that although the mutual will, as a will, might be revoked, the agreement itself would be effective: ‘the first dier’s will is then irrevocable’, but only in the sense that ‘a man may so bind his assets by agreement, that his will shall be a trustee for performance of his agreement’, the court making the devisee, heir or executor ‘trustee to perform the agreement’. This was an important and critical first step in the articulation of the doctrine. The later will, though made in breach of any agreement was, nonetheless, properly admissible to probate. The mutual will was ‘revocable’ in a probate sense, but not in the sense of the obligations effectuated in equity. Lord Camden described the basis of intervention as based on the fraud of the party who reneges on the agreement after the other party has performed his or her side of the bargain.
The decree made was that the testator, Camilla Ranc, had bound her assets to make good all the bequests in the mutual will of her husband and herself. The residue of the personal estate of René and Camilla was to be divided into two equal parts (‘moieties’) and was declared to belong to the grand-daughters as agreed in the mutual wills agreement.
A trust was superimposed upon the later will and codicil of which probate was granted. The property affected was all the property held by Camilla at her death. There was no distinction made between property acquired at the date of René’s death or thereafter. The property was ‘put into a common fund’ by the joint testators and the trust reflected this.
Of the doctrine of mutual wills
Once the doctrine was introduced into the common law of England it settled down over a couple of centuries with the distinct elements that can be seen in the doctrine still. Here are some basics.
Mutual wills arise where two (or more) persons have made an agreement as to the disposal of their property through wills, and each has, in accordance with the agreement, executed a will. The doctrine is based upon the mutuality of obligation of two testators: each makes provisions by will in return for provisions made by the other.
‘Mutual wills’ are different from ‘joint wills’ and ‘mirror wills’, although both the latter may be mutual as well. Joint wills are wills made by more than one person but expressed in one document — as indeed was the case for the Rancs and in the recent Queensland case of Masci v Masci. As each person dies the will (or relevant part of it) is admitted to probate as their individual will. Mirror wills are wills in reciprocal terms: ‘mirroring’ each other. What makes the arrangement one for mutual wills, rather than merely reciprocal wills, is a specific agreement that the provisions for the distribution of property set out in the wills are to be binding, often expressed in terms that the wills should not be revoked. While ‘mirror’ provisions can point to mutual wills, they are not enough of themselves to make the wills ‘mutual’ within the doctrine.
The elements are thus: (1) the agreement — contract — and its terms as to the binding disposition of property; (2) survival of one of the parties without revoking his or her will; and (3) the trust, or other equitable remedy, imposed.
The doctrine in operation
The issue as to when and how a mutual will may be revoked, and what consequences flow from this, is a key aspect of the doctrine. Proof of the contract that the obligations are binding is stringent. The tough questions usually arise when the first person dies, leaving their will unrevoked. Here Birmingham v Renfrew provides a useful framework of reference and the leading case for the contemporary doctrine in Australian law.
On 31 March 1932 Joseph Russell made a will by which he left the residue of his estate to his wife, Grace, and, if she should predecease him, to four of his wife’s relatives (two Renfrews and two Johnstons). On 1 April 1932 Grace Russell made a will in which, after providing for certain family legacies, she left the residue of her estate to her husband, Joseph Russell, and in the event of her husband’s not surviving her then to two Renfrews and two Johnstons (relatives of hers). She died on 31 March 1932. On the face of it, her whole estate went to her husband without reservation. Joseph’s estate would go to Grace’s relatives if his will remained the same. It didn’t. The destination of Grace’s estate had become important because she had inherited a large estate from her uncle. Joseph changed his will several times after his wife’s death and his final will benefited his own relatives, not Grace’s.
It was argued by Grace’s relatives that Joseph’s will of 31 March was made under a binding agreement with Grace to dispose of his property according to its terms, in consideration for which Grace made the will she did on the following day. The Renfrews and the Johnstons sought a declaration that the agreement should be specifically enforced or that the testator’s executors held the testator’s estate on trust for them (and a number of variants). Joseph’s relatives attacked the argument that there was a contract and denied that there was a binding agreement; or claimed it was uncertain.
The Court upheld the mutual wills agreement: that if Grace died without revoking her will, then Joseph was bound after her death not to revoke his will at all. The obligation on the survivor was specifically enforceable. If the survivor changed his will, the obligations remained. As Dixon J remarked, ‘the doctrines of equity attach the obligation to the property’. So, when Grace died without having revoked her will (that is, she had performed her part of the contract), Joseph was affected by a constructive trust to give effect to their agreement. Dixon J described it is a ‘floating obligation, suspended, so to speak, during the lifetime of the survivor’ which then descended on the assets at the death of the survivor to ‘crystallize into a trust’.
In Dufour, Lord Camden had made observations about the issue of revocability. He said that during their joint lives either party may revoke separately, provided notice of revocation was given to the other party. The other party then acquired an opportunity to change her or his will and the ground on which a trust was raised ceased to exist. This therefore provided for unilateral revocation, provided notice was given to the other party. Dixon J referred to this in Birmingham v Renfrew, where he stated that ‘neither party should revoke his or her will without notice to the other’. This was obiter in both cases as there was no notice given. But it set up a question for future cases: is the notice point part of the doctrine; and, if so, what is the relevant timing of the notice. Dixon J expressed it in doctrinal terms, and it was the failure to give notice during the lifetime of Grace that attracted the trust.
As an aside, and appealing to those with a legal historical forensic bent, just how the notice point came to be included by Camden LC, and referred to in subsequent cases, is in part attributable to the influence or discussion of civilian authorities in Camden’s deliberations in Dufour. We know that counsel in the case drew upon continental sources and that discussion about such matters occupied a considerable part of the argument. It is one of several distinct echoes of civilian doctrine that have found their way into the modern law of mutual wills.
In the civilian context, discussion on mutual wills was located in laws concerning husband and wife, and particularly the way that property was affected by marriage. For example, under Roman-Dutch law, a dominant thread in continental law, marriage created a community of goods, unless stipulated otherwise in an antenuptial contract. There was no separate property of either husband or wife, but rather the community introduced by marriage. Whatever was not expressly stipulated by antenuptial contract remained part of the community of goods on marriage. The contract had to be made before marriage because gifts between husband and wife were not permitted.
On the death of either husband or wife, the community came to an end and the property was divided in half, one-half going to the surviving spouse and the other half going to the heirs of the first spouse to die. Once married, husband and wife could not alter their succession plans as agreed in the antenuptial contract by making a will in contravention of those plans unless the other spouse knew of the proposed changes and consented to them. An example of this was through the making of a mutual will as a consensual instrument. It provided an avenue of overcoming the antenuptial agreement. But could they then revoke the mutual will?
At the time of Dufour, the degree of revocability of such mutual wills was a matter of debate amongst civil lawyers. There were authorities in different directions. Counsel in Dufour, for example, cited authority supporting secret revocation. Ld Camden, however, rejected such authority as applicable in English law, saying that ‘[t]he equity of this court abhors the principle’:
The law of these countries then must be very defective, and totally destitite of the principles of equity and good conscience: for nothing can be more barbarous, than a law, which does permit in the very text of it one man to defraud another.
The outstanding comparative legal historian, Professor Maurizio Lupoi, shows that Lord Camden was, in fact, preferring another of the prevailing continental views on the matter of revocation. He sees in Ld Camden’s use of the phrase ‘this court abhors the principle’, a direct reference to the Dutch jurist Cornelius van Bynkershoek who used the phrase ‘abominor hos mores’. [These ways are abhorrent]. Lupoi points out that Ld Camden’s comments that the mutual will could be revoked by one of the two testators ‘if he give notice’, and not secretly, is a reflection of ‘the other continental view, propounded by several authors’, based on a 1591 judgment by the Parlement de Paris.
Moreover, French writers had opined that a revocation by one when the other was on his death-bed would have been ‘frauduleuse’ and that the power to revoke was to be ‘moderée avec équité’.
Lupoi says that the opinon, according to which revocation was not possible after the death of one of the testators, ‘hinged on the mainly Dutch notion of a common patrimony’. Lupoi points to the work of the Roman-Dutch authors Simon van Leeuwen and Johannes Voet and provides the precise reference in each as behind Ld Camden’s statement that ‘the property of both is put into a common fund, and every devise is the joint devise of both’.
This, Lord Camden concludes is a contract, and ‘the first that dies, carries his part of the contract into execution’, thus echoing solemn French case law and the prevailing continental view: ‘qu’il a même reçu son execution, en ce qui concerne le suivant’.
While this was a decision based in English law, civilian authorities were very much present: they were raised and relied upon in argument and a choice made between competing approaches. The decision invoked equity, through the imposition of a trust, to give effect to contractual obligations. A hybrid will in form, attracted a hybrid legal solution in response.
What is the position of the survivor, like Joseph in Birmingham v Renfrew, or Camilla Ranc during the remainder of his or her lifetime? In a case like Birmingham, where the survivor is left the whole estate, the purpose is often to enable the survivor during his or her life as surviving spouse to deal as absolute owner with the property passing under the will of the party first dying. The object is to put the survivor in a position to enjoy for their own benefit the full ownership, but when they die the person is to bequeath what is left in the manner agreed upon. It is a form of ‘dead hand’ control, making provision for extended matrimonial enjoyment of property.
In the approach to categorising the nature of the obligation on the survivor, once more we can see the echoes of civilian doctrine plus the challenge of finding an appropriate ‘solution’ within common law. In Dufour, the couple themselves treated their property as a ‘common fund’ in which they only had life interests, reflecting continental law. The solution reached of the division of the property into halves, without particular examination of any of the property that comprised it, echoes the distribution of the community of goods in the civilian context. In common law this left hanging the question of the implications of this ‘common fund’ both for the survivor and the intended beneficiaries of the agreed succession plan reflected in the mutual will. It begs questions such as whether a trust is the appropriate solution (in rem or in personam?); when does the trust come into effect; and what property is subject to it, particularly when the survivor is left an apparently absolute interest in the property?
In Birmingham v Renfrew Dixon J introduced the idea of the ‘floating obligation’, and judicial and academic commentators have battled long and hard in resolving the niceties of this notion in trust law. The absence of a notion of community of property has created, in this particular context, stumbling blocks requiring the filtering of questions through doctrines based on the separate property of spouses in the common law. But it has also meant that the doctrine, as a common law one, could apply regardless of whether the parties were in fact husband and wife. In common law jurisdictions, mutual wills — as an equitable doctrine — can apply more widely and have done so, broadly operating as a device in a dynastic context: seeking, for example, to secure a family succession plan that excludes females, or to arrange the destination of family property as among siblings.
The nature of this trust was not simply the imposition of what may be described as an institutional trust, but rather a truly remedial constructive trust. As Dixon J himself explained:
I do not see any difficulty in modern equity in attaching to the assets a constructive trust which allowed the survivor to enjoy the property subject to a fiduciary duty which, so to speak, crystallized on his death and disabled him only from voluntary dispostions inter vivos.
Charles Rickett concluded that Dixon J’s judgment can be seen as an illustration of ‘shaping the remedy to meet the circumstances’.
Does the survivor have any freedom? Yes, but it is not unqualified: as Dixon J explained, gifts and settlements ‘intended to defeat the intention of the compact’ could not be made. The limitations on the survivor’s freedom of action depend on the nature of the promises made. In Birmingham the survivor was given an absolute interest — and therefore considerable freedom to dispose of property. Joseph could not make another will; but he could deal with property in the ordinary course; although it was not an unqualified power. Dixon J explained this as follows:
[n]o doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is not unqualified.
Things that are ‘will-like’ would meet this description: for example, settlements on the settlor for life with remainder interests — particularly if coupled with a power of revocation.
Of modern teeth
When I spoke at this Conference in September last year, Justice McMillan’s judgment in Flocas v Carlson had only been delivered three months earlier. It was so reassuring to find that my Melbourne University Law Review paper had been of assistance! McMillan J also made a thorough analysis of contemporary cases. The case shows how mutual wills are still very much alive and kicking today. In this case the arrangement was made between siblings.
Charles and Lillian Dawson had two children, Marjorie and Robert. Their family home was in Alfred St, Prahran, in Melbourne. When Lillian died in 1949, Charles and his two children became registered as tenants in common of the property. Marjorie married Keith Swift and they had three children. They all lived in Alfred St too. Robert married Joyce and adopted Robyn. They lived in Alfred St too (Joyce passed away in 1973). Charles died on 8 October 1990. His will of 9 March 1996 left the whole estate to Robert and Marjorie in equal shares. They were still living in Alfred St. There were other investment properties owned with their father, or owned together. The main focus of the litigation was on the Alfred St property.
In 1993 Robert became unwell and, in February 1996, he and Marjorie made wills at the same time. Four days later, Robert died. Two months later Marjorie executed another will, revising that again in August 1996. Marjorie died on 27 January 2012.
By his will, Robert appointed Marjorie his executor, and Robyn Flocas, his daughter, as substitute. He left his interest in Alfred St to Marjorie and left his residuary estate to Robyn. Marjorie’s February 1996 will provided that, if Robert predeceased her, then Alfred St would go to Robyn, Marjorie’s niece.
Marjorie’s April will, made after Robert’s death, left a one-half share in Alfred St to Robyn. Her August will left the residue of her estate to her husband Keith. So Robyn was the one who suffered. And she was the one who sued.
Part of the litigation concerned whether the wills made by Robert and Marjorie in February 1996 were the result of a mutual wills agreement, relevantly that in consideration of Robert executing and not revoking the will in which he devised to Marjorie his interest as tenant in common in the Alfred St property (two equal undivided shares), Marjorie agreed to execute, and not revoke, a will under which she devised one of two equal undivided shares as tenant in common to Robyn. Robert agreed in similar terms. So when Robert died first, Marjorie’s interest in Alfred St was ‘impressed with and thereafter held by her on a constructive trust’ for Robyn. In the alternative it was put that, as of Robert’s death, Marjorie’s interest in the property was held by her ‘subject to a floating fiduciary obligation, which crystallised into a constructive trust on Marjorie’s death’.
The mutual wills issue of course turned on whether there was an agreement. (There were other alternative arguments — estoppels and family provision mainly, after an early attempt to say there should be rectification of the will was dropped. None of these were successful).
The evidence was drawn largely from handwritten notes made by the solicitor, Mr Starnawski, who took instructions from Robert. There were notes at the time, and notes made on returning to the office, and more a week later. They were all kept on file. He made the more comprehensive notes because he ‘wanted to ensure and have clear in my mind exactly what had happened’. McMillan J thought that the solicitor realised that the matter could very well end in litigation. It was clearly a very sensible strategy as the case turned largely on Mr Starnawski’s notes.
What seems to have happened, as explained from the notes and through various accounts in oral evidence, was that in the meeting of Robert and his sister with Mr Starnawski, Robert said that he wanted to leave his interest in Alfred St to his daughter, Robyn, but Marjorie interrupted and said it should go to her; and then after her death she would leave half to Robyn — because it has been the family home. Starnawski’s notes recorded the instructions that the Alfred St was to go ‘to Sister on understanding that in her will she will leave ½ int.’ to Robyn. Robyn read that as ‘undertaking’ not ‘understanding’. It was handwritten. McMillan J accepted the solicitor’s reading of it as ‘understanding’ – it was his handwriting after all.
The second file note stated:
Re 40 Alfred—he instructed he wanted to give his interest in the property to his sister on the basis that in her will she gave half of it to his daughter Robyn. She said she would in the presence of him/the daughter + me. We discussed other alternatives but in the end that is what he wanted.
The third file note included this:
[Marjorie] then proposed that her brother leave his interest in the property to her as she was concerned to retain ownership of the family home and that in her will she would leave a half interest in the property at Alfred Street to [Robert]’s daughter. [Robert] accepted the proposal.
Mr Starnawski took instructions for Marjorie’s will and was concerned to prepare wills for each of them reflecting the agreement. In cross-examination he insisted that Marjorie also realised at that point that it was necessary for her to make a will.
He prepared both wills and arranged their signatures the next day. Evidently he also told Marjorie that she could later revoke the will and replace it with another, but there needed to be a will to ‘carry out her promise to her brother’ concerning Alfred St. He also told her she could not make a change in relation to the gift of Alfred St.
Was there a binding contract to make mutual wills? The ‘mere resemblance and reciprocity’ of the terms of the wills was not enough of itself as we know is clear law. But there was enough here. The file notes taken contemporaneously by the solicitor provided sufficient certainty as to the terms of the agreement: ‘It is in plain terms, and leaves no doubt’. Was it legally binding? Was ‘on the understanding’ enough? McMillan J did not place great weight on the particular form of words in the file notes. She placed some weight on Marjorie’s subsequent actions, in executing two wills that were consistent with the alleged agreement, including one executed after Robert’s death. But it was the whole context that led to the conclusion that there was in fact a binding agreement.
… the agreement was discussed in a legal context, in the presence of a lawyer who was preparing testamentary documents and a transfer of land, whilst explaining the legal effect of title documents that the parties produced to him. Robert and Marjorie were not having informal discussions about how they might, on an informal basis, agree to administer a joint estate — they were establishing a legal framework to dispose of a series of jointly held assets between their respective families. Plainly they recognised that, although they had held joint assets throughout their lifetimes, after their death their separate families would not and could not continue to operate in that relationship, and their assets would have to be separated, sold and distributed. Neither would contemplate forcing the other out of a family home they had lived in since the 1940s. Robert’s illness forced them to confront the legal status of their holdings, and how it would be administered and disposed of.
… In the result, I consider that, although Robert and Marjorie may have trusted one another, they did not contemplate that a transaction of this significance would be regulated only by that trust. They intended all of the arrangements entered into with the assistance and advice of [their solicitor], including the mutual wills agreement, to be legally binding.
The result? Marjorie’s executors held the Alfred St property on constructive trusts as to one of two equal undivided shares as tenants in common for Robyn beneficially.
The advice is mixed on using mutual wills as an estate planning strategy. Families change — and change. As one succession text comments, ‘their benefits may be outweighed by unforeseen and uncertain circumstances’, recommending the observation of Hammond J in the NZ case of Re Newey:
It may very well be that the parties agree to make identical (mutual) wills now, but that they agree to go no further than that. That would be a quite acceptable arrangement to some couples, and would leave it open to one or other of them to make such arrangements as they see fit in futuro. Presentism is a perfectly rational response to a very fluid world.
Some have advocated avoiding mutual wills ‘like the plague’. But if the certainty that mutual wills provides is what clients want, as it clearly was for siblings Robert and Marjorie in Flocas v Carlson, then there are several things that should be addressed (notwithstanding the plague). I refer here to the list of the late (and very much missed) David Haines QC of matters to be particularised:
- the trusts on which the property is to be held;
- the property to be included;
- what is to happen during the lifetime of the survivor; and
- the nomination of trustees and their powers.
Hutley’s Australian Wills Precedents includes forms for mutual wills and similar contractual arrangements, but with the rider that they should ‘generally be avoided’.
Whether one considers the place of mutual wills in civilian jurisprudence, or the role they have played in common law, the field of engagement is the same, and the issues continuing, namely what are the common law ‘rules’ of family property: what is the balance between the individual and the State in terms of initiating or qualifying provision for family members. Barns v Barns (2003) threw a further spanner in the works of the private ordering represented by arrangements like mutual wills when the High Court held, as a matter of construction, that property the subject of a contract to make a will in a particular way, could be caught within the reach of family provision as ‘estate’— at least in South Australia. There is a lot to be discussed there: a conversation for another day. In the meantime I refer you to my article in the Sydney Law Review. There are also a number of permutations and combinations of facts that test the doctrine’s limits, and its relationship to other more recent doctrines like proprietary estoppel, that can also be expounded upon: such as, what if it is the first to die who has changed their will; and is benefit to the survivor necessary; is a constructive trust always the approach in equity? For today I will finish in saying that the doctrine of mutual wills — ancient and modern — is merely part of a much bigger question.
* President, Australian Law Reform Commission; Adjunct Professor of Law, Macquarie University.
 (1769) 1 Dick 419; 21 ER 332.
 Established in Tweddle v Atkinson (1861) 1 Bes 393.
 ‘Mutual wills and Dufour v Pereira—contemporary reflections on an old doctrine’ (2005) 29 Melbourne University Law Review 390–411.
 (1769) 1 Dick 419; 21 ER 332.
 F. Hargrave, Jurisconsult Exercitations, London, 1811, vol.2, 100-108 (hereafter ‘Hargrave, Jurisconsult’). The same note is contained in his earlier work F. Hargrave, Juridical Arguments, London, 1799, vol. 2.
 Hargrave, Jurisconsult, at 100.
 (1797) 3 Ves Jun 402.
 The pleadings are found principally in the ‘C12’ series, Various Six Clerks, Series II, PRO. The pleadings for Dufour v Pereira are found at C12/1010/4 (catalogued as ‘Dufour v Peraro’); and C12/525/5 (catalogued as ‘Dufour v Vernezobre’). Some other information relevant to the chronology is found in the ‘C33’ series, Entry Books of Decrees and Orders. These will be referred to hereafter as ‘Chancery orders, PRO’ with their ‘C33’ reference. The Final Decree repeats the key pleadings: C33/425, Chancery orders, PRO, 583.
 Hargrave, Jurisconsult, 102.
 Hargrave, Jurisconsult, 108.
 Walpole v Orford (1797) 3 Ves Jun 402, 416.
 Hargrave, Jurisconsult, 107. The Final Decree is found in C33/431, Chancery decrees, PRO, 583.
 Hargrave, Jurisconsult, 104.
  QCA 245.
 Birmingham v Renfrew (1937) 57 CLR 666, 675, Latham CJ. See also Gray v Perpetual Trustee Co Ltd  AC 391, 400-401, Visc Haldane for the Judicial Committee; Re Cleaver; Cleaver v Inley  1 WLR 939, 944-45, Nourse J.
 Birmingham v Renfrew (1937) 57 CLR 666.
 (1937) 57 CLR 666.
 They also pleaded the ‘Statute of Frauds’, namely the requirement for contracts relating to land to be in writing to be enforceable. At the time of the agreement and at the time of her death Grace owned real estate — was this therefore a contract to dispose of an interest in land within the relevant Statute? Dixon J stated at 690–91, that ‘…before it can be held that any contract falls within the statute, it should be possible, as soon as the contract is made, to predicate definitely of it that it falls within the terms of the statute’. If it is only subsequent events that bring land within it, this doesn’t bring the contract within the statute.
 (1937) 57 CLR 666, 683.
 Ibid 689.
 Hargrave, Jurisconsult, 104; (1769) 1 Dick 419, 421.
 (1937) 57 CLR 667, 684.
 Hargrave, Jurisconsult, 103.
 M Lupoi, ‘Trust and Confidence’ (2009) Law Quarterly Review 253, 276–277. Lupoi refers to Opera omnia (1767), p 389. Complete editions of van Bynkershoek’s works (opera omnia) were published in Geneva in 1761 and Leiden in 1766.
 Hargrave, Jurisconsult, 104.
 Lupoi, 277.
 Lupoi, 277.
 Lupoi, 277.
 See for example the analysis and discussion of authorities in T G Youdan, ‘The Mutual Wills Doctrine’ (1979) 29 University of Toronto Law Journal 390, 410–415; L A Sheridan, ‘The Floating Trust: Mutual Wills’ (1977) 15 Adelaide Law Review 211–242.
 Walpole v Orford (1797) 3 Ves Jun 402.
 Hobson v Blackburn (1822) 1 Add 277; Flocas v Carlson  VSC 221, considered later.
 (1937) 57 CLR, 690.
 C E F Rickett, ‘A Rare Case of Mutual Wills and its Implications’ (1982) 8 Adelaide Law Review 178–196, 196. See also A H R Brierley, ‘Mutual Wills – Blackpool Illuminations’ (1995) 58 Modern Law Review 95–101, 99.
 (1937) 57 CLR, 690, 689.
 Like the transaction in Russell v Scott (1936) 55 CLR 440 (joint bank account with life interest reserved for the testator).
  VSC 221.
  VSC 221, .
  VSC 221, .
 Compare the facts of a case like Campbell v Campbell  NSWSC 784, where a mutual wills agreement could not be established.
 G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Buterworths, Australia, 2013), [1.46].
  2 NZLR 590, 596.
 R Burgess, ‘A Fresh Look at Mutual Wills’ (1970) 34 The Conveyancer 230, 246.
 D M Haines, Succession Law in South Australia (Butterworths, 2003), [4.26].
 7th ed, 2009, ch 33.
 (2003) 196 ALR 65.
 ‘Contracts to leave property by will and family provision after Barns v Barns  HCA 9—orthodoxy or aberration?’ (2005) 27(2) Sydney Law Review 263.
 ‘Mutual wills and Dufour v Pereira—contemporary reflections on an old doctrine’ (2005) 29 Melbourne University Law Review 390, 399–402.
 Ibid, 402–404.
 Ibid, 405–407; and see C E F Rickett, ‘Mutual Wills and the Law of Restitution’ (1989) 105 Law Quarterly Review, 534–539; C E F Rickett, ‘Extending Equity’s Reach through the Mutual Willls Doctrine?’ (1991) 54 Modern Law Review 581–587.