The testatrix had two daughters, the first and second claimants. In July 2000, the testatrix and her husband made wills in favour of the survivor, and subject to that, in favour of the claimants in equal shares.
The husband died in May 2001. Between 2001 and 2004, the testatrix made 13 further wills. These progressively favoured the defendants (who were two of the grandsons of the testatrix and the partner of one of them), at the expense of the claimants. The last of these wills was made on 12 December 2014, when she made a further will under which the claimants took a legacy of £10,000 and £30,000 respectively.
She died on February 2016 having made a later will dated 12 December 2014. The claimants brought a claim on May 2016 alleging that the 2000 will and the contemporaneous will of her husband were mutual wills, which should be enforced by the court by means of a declaration that the estate was held on trust for them in equal shares.
- 1) The evidence that the claimants gave of the discussions with their parents at and after the time of the execution of the wills on 25 July 2000 was substantially correct. Out of these discusses arose two critical ideas (i) that their father was concerned to lay down once and for all the devolution of the family property, so that the wills should be ‘set in stone’, and (ii) that their mother agreed to this.
- 2) Accordingly, Mr and Mrs Clark had expressly promised each other that having made their wills in the form they had they would not revoke them, and thereby engaged the principle of mutual wills. That being so, the testatrix was not free unilaterally to alter her will and make a new one inconsistent with that of July 2000, in the sense that, if she did so, her personal representatives would hold her estate on trust to perform the equitable obligations laid upon her under the doctrine of mutual will.
- 3) The so-called ‘three certainties’ rule was not a rule about trust law at all. Instead it was a rule about property law, and, trusts being part of property law, they followed that rule too. If A is to make a gift to B of some asset valid at common law, it is obvious that A must intend a gift and not a loan (or some other legal construct), that it must be clear exactly what it is that is being given, and that it must be clear to whom it is being given. A failure in any respect causes the gift to fail. So too with trusts. In the present case, that rule (so far as it applies) was complied with. There is no doubt that both Mr and Mrs Clark intended that their wills should not be changed. They did not specify that there was to be a trust to implement their intention, any more than the parties in Paul v Constance  1 WLR 527, CA, did so. And indeed this would be a constructive trust, albeit one arising from an agreement, so the rule cannot apply in the same way as an express trust. But their intention was clear nonetheless.
- 4) It was clear that the idea of not changing or revoking your will carried with it the notion that everything that you leave at your death shall pass to the ultimate beneficiaries. The subject matter of this trust was everything which is left at the death of the survivor. And that is the point at which usually the constructive trust is imposed, to the extent that the provision then made by the will of the survivor, or the intestacy rules so far as they are applicable, or a combination of both, was inconsistent with the original agreement.
- 5) There was no doubt that when Mrs Clark, the testatrix, made the many further wills after 2000 which she did, she had either forgotten that she had made a promise not to change her will, or, if she remembered that (and on at least one occasion she was reminded of it and changed her will back accordingly) she was nevertheless not entitled to disregard it. In equity at least, the clock of her testamentary freedom had stopped with the death of her husband, and thereafter she no longer retained the unilateral right to dispose of her assets that she had once enjoyed.