McLean & ors v McLean [2023] WTLR 1495

WTLR Issue: Winter 2023 #193

IAN PAUL McLEAN

SEAN ANDREW FREDERICK McLEAN

LORRAINE POMEROY

V

BRETT REGINALD McLEAN

Analysis

In 2017 a husband and wife executed mirror wills leaving their respective estates to the survivor and the residue to their four children in equal shares. In March 2019 the husband died and the wife inherited his estate. In August 2019 the wife executed a new will leaving her entire estate to one son, the defendant in the proceedings. She died 11 days afterwards. The three remaining children argued that the 2017 wills were mutual and that the wife’s estate was therefore held on trust for them equally. They relied on a conversation between the husband and wife and their solicitor where, in answer to the solicitor raising the issue that the wife could change her will after her husband’s death, the husband said he trusted his wife implicitly. The claimants also argued that the husband had acted to his detriment on his wife’s assurances that she would not revoke her will.

At first instance, the judge held that the evidence did not demonstrate a legally binding agreement that neither would revoke their 2017 wills, and that the husband was willing to rely on trust alone and did not think an agreement was needed such that there was only a moral not legal obligation. Further, proprietary estoppel could not suffice in place of an agreement in the creation of mutual wills, and the estoppel failed on the facts in any event.

The appellants appealed, arguing that the judge failed to give proper effect to the trust that the testators expressed in the other that they would abide by their agreement not to change their wills again, and that the judge had erred in finding an express agreement was necessary.

Held:

Appeal dismissed:

  1. (1) Mutual wills: the conclusion that there was no agreement was one which was open to the judge on the facts. There was no error of law. The judge did not say that an express agreement was required. A clear agreement was needed to establish mutual wills, whether strictly contractual or not (Goodchild v Goodchild [1997] followed). Expectation or trust was insufficient, and the evidence only established trust. The conversation with their solicitor was not an agreement but words of expectation.
  2. (2) Proprietary estoppel: as a matter of principle, an estoppel could operate in the context of mutual wills if the evidence was clear enough (Legg v Burton [2017] considered). Equity applied to both estoppel and mutual wills to prevent injustice. However, the claimants’ arguments on estoppel failed at the factual stage: it would have to be established that there was an appropriate representation by the wife intended to be binding and received as such that she would not revoke her will. The facts that were fatal to mutual wills were fatal to estoppel. There was no agreement as it had not been established that the parties intended to bind themselves beyond the realms of trust. There was no representation and no reliance.
JUDGMENT SIR ANTHONY MANN: Introduction [1] Where parties agree to leave true mutual wills, their agreement is capable of giving rise to trusts affecting their property which prevent the second to die from effectively resiling from the agreement, via the mechanism of the imposition of an implied trust (or perhaps a constructive trust). That that …
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Counsel Details

Michael Horton KC (Corm Chambers, 9-11 Fulwood Place, London WC1V 6HG, tel 020 7092 3700, email clerks@coramchambers.co.uk) and Guy Holland (The 36 Group, 4 Field Court, Gray’s Inn, London WC1R 5EF, tel 020 7421 8019, email clerks@36family.co.uk), instructed by Taylor Rose MW (58 Borough High Street, Southwark, London SE1 1XF, tel 020 3540 4444, email info@taylor-rose.co.uk.) for the claimants/appellants.

The respondent appeared in person.

Cases Referenced

Legislation Referenced

  • Law of Property (Miscellaneous Provisions) Act 1989 (c.34), s2