Charles & Ors v Fraser

In this case the Claimants seek to rely on the doctrine of mutual wills. That doctrine, where it applies, entitles the beneficiary named in a testator’s revoked will to compel the Executors named in his final will to administer his Estate in accordance with the terms of the revoked will rather than with those of his last one. What is said is that two elderly sisters, Miss Mabel Cook and Miss Ethel Willson made an agreement as to the disposal of their property and executed wills in substantially identical terms pursuant to that agreement. Mabel died first without having revoked her will. Ethel received benefits under Mabel’s Will but later made her final will in different terms and then died. The question is whether the persons who would have been the beneficiaries under Ethel’s original Will can claim that her Estate should be held on the trusts of that Will and not of her final Will.

Mabel and Ethel were sisters. Mabel was born in 1912 and Ethel in 1914. Their mother’s name was May. May had a brother, Will Goddard, who had a son called Derek. Derek Goddard was therefore the first cousin of Ethel and Mabel.

Mabel married Len Cook. Len Cook had two sisters, Gladys Charles and Grace Martin. Gladys Charles had a daughter, Angela, and Grace Martin had a daughter, Marilyn, whose married name is Brenard. Angela and Marilyn were therefore Len Cook’s nieces and Mabel’s nieces by marriage. Angela Charles was also one of Mabel’s God-daughters.

When Mabel was a child she went with her mother to visit a relative in Malvern in Worcestershire where she met a child of her own age called Dolly, later Armstrong. The two little girls became firm friends and Mabel used to visit Dolly every year thereafter during the school summer holidays. When they were grown up Mabel still loved to make her “annual pilgrimage” to Malvern. In due course Dolly had a daughter, whom she named Anne Mabel after her friend and Mabel became Anne Mabel’s God-mother. In due course Anne married and became Anne Thompson.

Her daughter Angela, (now Angela O’Neill) was born on Mabel’s birthday, was given the second name of “May” after Mabel and Ethel’s mother and became Mabel’s third God-daughter. When Angela married she wore the head-dress Mabel had worn at her own wedding and Mabel gave her a gold charm bracelet with a St Christopher of huge sentimental significance, since it had been given by Mabel to her husband when he joined the forces in 1940 and returned by him to her when he came safely home at the end of the war.

Ethel also had a life-long friend whom she had known since her schooldays, Lilian Jones. Lilian married Victor Jones and had a son called Graham, who suffered from cerebral palsy. Graham was Ethel’s God-son and she is said to have been very devoted to him. In 1943 Ethel married Sid Willson. Gladys Charles was a bridesmaid at her wedding. Sid had an old friend (or possibly relative) called John W. Murfett. His wife was called Stella and they had a son, John. Sid also had a niece called Valerie Bielby.

Len Cook, Mabel’s husband, died in 1972. At that time Mabel was living at 105, Elmwood Drive, Stoneleigh. About 6 months after Len’s death Jill Fraser, the Defendant in these proceedings, moved from Sutton to 103 Elmwood Drive, next door to Mabel, with her husband Keith and their three small children, Jason aged 3 and the twins, Jane and Justin, aged 2 (Keith and Jill Fraser were subsequently divorced). Mrs. Fraser told me that she immediately became very friendly with Mabel and with her sister, Ethel, who visited Mabel very regularly, sometimes staying overnight. Mrs. Fraser says that both ladies were attracted to and became fond of her young children, albeit that other witnesses told me that the sisters were not particularly fond of small children, particularly boys, whom they regarded as a potential danger to their precious household ornaments. Mabel used to spend a lot of her time with an aunt and uncle who also lived in Stoneleigh and in about 1980 seems to have moved in with them to look after them. Mrs. Fraser would keep an eye on Mabel’s house for her when she was not there.

Ethel’s husband, Sid Willson, died in 1975. Ethel then got a job as a receptionist at the solicitor’s firm of Harold Bell & Co. and worked there until 1982. Now that her husband had died, Ethel used to accompany Mabel on her “annual pilgrimages” to Malvern to visit Dolly Armstrong, and Mabel’s God-daughters, Anne Thompson and Angela O’Neill. Anne was employed as a civil servant but used to take part of her annual leave to chauffeur her mother and the sisters round the “blue remembered hills” of Mabel’s youth. After Anne’s mother died in 1990, Angela used to come as well and act as the chauffeuse. After Mabel’s death in 1995, Ethel continued these visits, with Anne driving up to London to pick her up, and the visits only ceased about 3 years before Ethel’s death in 2006.

Neither Mabel nor Ethel had any children and, after the death of their respective husbands, they did not marry again. In the mid-1980s they both sold their respective marital homes and bought a house at 14 Woodstone Avenue, Stoneleigh, which they called “May” after their mother and which they held as joint tenants. In January 1991, with the assistance of the firm of solicitors for whom Ethel had previously worked, namely Harold Bell & Co., they made reciprocal Wills.

The present senior partner of Harold Bell & Co., Mr. Malcolm Bell, gave evidence before me. He told me that he knew Ethel Willson well because she had worked as their receptionist from 1975 to 1982 and that he also knew Mabel, “who often popped in”. He described the sisters as “two peas in a pod” who did everything together and lived together for a number of years. It was not, however, Mr. Bell who took their instructions as to the drafting of the 1991 Will, but a legal executive called Lesley Collins, who died in 2008.

Both Wills began with a direction that the body of the Testatrix should be cremated at Randalls Park Cemetery, Leatherhead and her ashes interred in Plot C171. There followed in Mabel’s Will a bequest of all her real and personal estate to Ethel and the appointment of Ethel as Mabel’s sole Executrix. In turn Ethel’s Will bequeathed all her real and personal estate to Mabel and made Mabel her sole Executrix. Both Wills then provided that if the sister of the Testatrix did not survive her then the subsequent clauses of the Will should take effect in lieu of the previous bequest.

Each Will then appointed Gladys Charles and Lilian Jones to be the Executrices and Trustees of the Will and gave each of them £500 should they accept that office. Subject to that and to the payment of funeral and testamentary expenses, taxes and debts, by clause 5 each Testatrix then devised and bequeathed all the residue of her real and personal estate to her Trustees upon trust to convert the same into money and divide the proceeds into 40 shares to be distributed among 15 named beneficiaries in specified shares. Finally the Wills provided that in the event of any of the named beneficiaries predeceasing the Testatrix, their share should lapse and should be taken by the remaining residuary legatees, whose share should be increased proportionately.

The easiest way to appreciate the way in which the sisters had decided to dispose of their property and the care they had taken in reaching their mutual decision is to set out the legatees, their relation to each of the sisters and their shares in the form of a table as follows:

The construction of this table is made possible by the evidence of Angela Charles who explained to me in her witness statement and her oral evidence the relationship of each of the legatees to the sisters. There was no controversy about this part of the evidence. It will be seen that the sisters had gone to some trouble to allocate an equal number of shares to what may be called each side of the family. Mabel’s choice of legatees included her two sisters-in-law by marriage, each of their daughters and the daughter and grand-daughter of her old friend Dolly. Ethel’s chosen beneficiaries included her old friend Lilian, Lilian’s husband and son (who was also her God-son), the Murfett family, who had been friends of her husband, and her husband’s niece. Also included was Derek Goddard, who was the first cousin of both sisters.

Neither Will contains any record that the Wills had been made pursuant to an agreement between the sisters but it is apparent from the provisions of the Wills that the terms must have been carefully discussed and agreed. The Wills did not contain any express statement as to whether any agreement had been made as to whether they could or could not be revoked nor did they contain any statement designed to negative the creation of any constructive or implied trust. What can perhaps fairly be said about them is that, since the provisions in clause 5 could only come into play on the death of the survivor, there was not a lot of point to them if the survivor was to be in a position to revoke her Will following the death of the other sister. The care with which the shares were devised and agreed is some indication that each sister at least expected the property of the survivor to pass in the manner provided for and was content to leave her property to her sister on that basis.

On 8^th February 1993 each sister executed a short codicil to her 1991 Will appointing Derek Goddard as an Executor to act jointly with Gladys Charles and Lilian Jones. That appointment would only take effect, of course, on the death of the second to die.

At the time that the sisters made their 1991 Wills Mabel was 78 and Ethel was 76. There was no suggestion in the evidence that either was then in poor health. It seems that both ladies were perfectly happy to talk about what they called “the Will” to other members of the family and to close friends. Angela Charles, a retired English teacher, who gave her evidence both firmly and clearly, said in her Witness Statement:

In cross-examination Miss Charles was asked what she and her mother knew of the sisters’ Wills. She said:

Miss Charles told me that the two elderly ladies were extremely talkative to the extent that others could hardly get a word in. This was confirmed by all the other witnesses. The subject of their Wills was a regular topic of conversation.

Anne Thompson (whom Mabel and Ethel visited in Malvern) said in her Witness Statement:

Under cross-examination Mrs Thompson told me:

Mrs Thompson told me that she had seen the Will. She was shown her name. She was shown it both when Mabel was alive and by Ethel after Mabel had died. She did not study the other names. The sisters only pointed out her name and not her daughter’s. She said that she was led to believe that the Will could not be changed and was “written in stone”, but she accepted that those were not the actual words the sisters had used and that she could not remember whether they had said that the Will was intended to be “binding”, although that was what she was “led to believe”.

Marilyn Brennard (one of Len Cook’s nieces) used to see Mabel and Ethel three or four times a year after they were widowed at the home of Gladys and Angela Charles. She said that she clearly recalled them discussing the making of Wills from which, she said in her Witness Statement, it was clear that they intended that they should be binding for the future. She did not know the details of the Wills but she did particularly remember the sisters being adamant that they would leave Ethel’s God-son, Graham Jones who suffered from cerebral palsy, a suitable sum of money and that they had told his parents of their intention. She thought that was good of them.

Mrs Brennard gave her evidence on the second day of the trial without having heard the evidence of the witnesses who went before her. Under cross-examination she told me that she remembered both sisters talking about making their Wills; that they talked incessantly; that they talked a lot about “the Will” and said that it was equal on both sides and that they had done it together. Mrs Brennard said that she did not know the contents of the Will but did remember that Graham was specifically mentioned and that the sisters explained that they had made the Will 50:50 and said they regarded it as fair and as one Will. They did tell her that she was “in the Will”. They also said that they did not want anything changed; the Will had been made between them, was fair and was not to be changed. She said that she could not remember whether they had used the word “binding”, although they may have done; they made it quite clear that that was how they intended it to stay; they had taken a lot of trouble to sort it out; they said it was not to be changed. She said that she never saw a copy of the Will and did not know who the other beneficiaries were.

Evidence was also given by Mrs Iris Rayment who has lived at 12 Woodstone Avenue (next door to Mabel and Ethel) since about 1988. She said that she and her husband got to know Mabel and Ethel extremely well:

Mrs Rayment was an important witness. She gave her evidence on the afternoon of the second day of the hearing, having arrived in Court rather later than expected and not having heard any of the previous evidence. Before verifying her Witness Statement she read it through carefully in its entirety. Under cross-examination, she told me how Mabel was the more practical of the two sisters and had the whole house decorated shortly before she died so as to leave it in tip-top condition for her sister. Mrs Rayment gave her evidence openly and cheerfully. She was not one of the beneficiaries under the 1991 Wills and it cannot be suggested that she has any financial interests in the outcome of these proceedings. She used to go next door to see Mabel and Ethel quite often - to get away from her children, she said. They would come to her house as well. They both used to talk about their Wills and “went on about shares”, which Mrs Rayment did not understand because she was never shown a copy of the Wills. The passage from her Witness Statement quoted above was put to her and she confirmed that that was what had been said.

It will be seen from the above account that there is therefore apparently considerable and consistent evidence from close friends and relatives of the sisters that the Wills had been made subject to an agreement between the sisters and that it was part of that agreement that the gifts on the death of the survivor were not to be changed.

At the time they made their wills in 1991 there is no reason to suppose that either sister was in poor health but about 4 years later Mabel was found to be suffering from cancer, of which she died on 17^th March 1995 aged 83. When Mabel knew she was dying she explained to Angela and Gladys Charles that the individual legacies in her will in their favour would not be paid until after Ethel’s death because she and Ethel had agreed, when they made their wills, that each would initially leave her money and her share of the house to the other in order to provide for the other’s needs in old age; at the death of the second sister the remainder of their joint estates was to be distributed according to the provisions of their wills. According to Angela Charles she gave this explanation in the presence of Ethel, who agreed.

It was suggested to Miss Charles that this passage in her witness statement had been elaborated in the light of a better understanding of what needed to be proved since she had prepared an earlier version. Miss Charles could not at first quite believe what was being suggested but, when she did understand, said that she found the suggestion insulting. She said firmly that she was not lying and had not contradicted anything she had previously said. In answer to questions from the Bench as to how her evidence had been prepared, she described how she had received a draft of her witness statement for signature from the Claimants’ Solicitors and had insisted on making corrections to it where she thought it was not accurate before she would sign it. She pointed out that, perhaps because of her profession, she was sensitive to and scrupulous about the use of words. I have no hesitation in accepting her evidence of the conversation with Mabel shortly before Mabel’s death.

Angela and Gladys Charles were not the only people that Mabel saw fit to speak to at this time. Angela O’Neill said in her witness statement:

Angela O’Neill was carefully cross-examined about that paragraph of her witness statement. She said the sisters had never spoken to her about the will until this occasion and that she could not remember her mother having mentioned it before. She thought that it was in February 1995 when she went to see Auntie Mabel. She agreed that she had found it an upsetting visit. She said that she had known that Mabel was quite ill; Mabel had rung her mother and she and her mother drove up to visit the sisters at their home. They had lunch with them and spent the whole day there; the sisters said that they had discussed their will in great detail; they wanted to give a bit to a lot of people; they had spent a lot of time discussing things. Talk about the will went on before, during and after lunch. The sisters said that they had left something to lots of people. They mentioned Angela and her mother but did not say who else would benefit. Angela did not ask – “that would have been rude and insensitive”. She said that they explained that everything went to the surviving sister first. She did not see any will and thought that they had one will between them since they referred to it as “the Will”. On the same occasion each sister gave Angela a diamond solitaire ring and they also gave her a figurine in Royal Worcester China representing the month of her birthday. Angela was pressed as to whether they had said anything about the will being altered. She repeated several times that they had said the will would not be altered. She said: “It was not a question of not being allowed – it was what they had agreed. They would not want to alter it”.

So much for the evidence as to what the sisters told others before Mabel’s death. After Mabel’s death Ethel adopted the practice of spending 2 weeks at home at Woodstone Avenue and 2 weeks staying with her friend, Lily Jones. Angela and Gladys Charles would keep tabs on when she was away and when she was back by recording it on their calendar. The day after Ethel came home she would telephone the Charles’s and ask when they were coming over. Angela Charles told me that they visited her about every 6 weeks; initially her father would go and collect Ethel; subsequently Angela and Gladys went over to visit her and sometimes Angela went to collect her by train.

Angela told me that after Mabel’s death, Ethel used frequently to talk about “the Will”, always stressing that it was Mabel’s will as well as her own and that she regarded it as binding and would honour their agreement. Apparently Ethel used to introduce Gladys and Angela Charles to others as her sister-in-law and niece/goddaughter, although those were in fact the relationships in which they stood to Mabel, rather than to Ethel.

After Mabel died, Ethel went on visiting Anne Thompson and Angela O’Neill in Malvern. Anne Thompson would drive to Surrey to pick her up and take her back after her stay. Anne Thompson told me:

Other witnesses told the same story independently. Iris Rayment said:

Evidence was also given by Mr. Colin Last who became Ethel’s financial adviser in about 1996, after Mabel’s death. Mr. Last used to go to see Ethel once every 3 months and so they got to know each other well and became friends. She used to insist on taking him out to lunch at what he called “The Beefeater” which she clearly looked forward to because she would have her coat on ready to go out for lunch when he arrived. He said that she kept a bundle of files in her safe including the Will which she got out and showed him. She appeared to be very proud of it.

Mr. Last said that on a number of occasions Ethel told him:

In the light of all this, what happened in 2003 is rather puzzling. Ethel altered her will. She did not go back to Harold Bell & Co. for whom she had previously worked and who had drafted the 1991 wills, but to a different firm of Solicitors, Brett-Holt, probably because they had an office in Stoneleigh and were closer. She spoke to an associate Solicitor called Elaine Mason.

Ethel handed Miss Mason two sheets of paper giving new addresses for Derek Goddard, Angela O’Neill, Anne Thompson and Lilian Jones. On the bottom of the same sheet of paper headed “Addition to the will” were the names and addresses of Jill Fraser and Colin Last, against each of which was written “2 shares”. On the second page Ethel recorded that Victor Jones had died on the 6^th August 1997 and that John Murfett Senior had died on the 22^nd October 2002. She also gave a new address for Grace Martin.

Miss Mason’s manuscript note of Ethel’s instructions is extant. The first instruction was as to the Executors. They were to be Gladys Charles, Angela Charles and Derek Goddard. Lily Jones was not to be an Executor. The note reads:”

Miss Mason then drafted a will incorporating the changes of address, deleting Lily Jones and the deceased beneficiaries, increasing the shares of Julie Baker and Angela O’Neill and adding Jill Fraser, Colin Last and John Rose as beneficiaries. She sent a draft to Ethel who made a number of corrections. The will was redrawn and executed by Ethel on 2^nd September 2003 at Brett Holt’s offices, her signature being witnessed by Elaine Mason and one of the secretaries.

It will be seen that Ethel had not attempted to alter the gifts to, or shares of, any of the beneficiaries from Mabel’s side of the family. She had, however, probably unwittingly, altered the value of their shares. If no changes had been made, 6 shares would have lapsed as a result of the deaths of Victor Jones and John Murfett, leaving 34. In the new will there were 36 shares, so the value of each share was slightly less than it would have been had Ethel made no alterations.

What Ethel told others at the time of making her 2003 will was in evidence. Angela Charles said that in late 2003 Ethel told her and her mother that she was “updating The Will”, making no major changes but removing the names of people who had died and changing to Brett Holt, Solicitors. She asked Angela to be an Executor instead of Lily Jones because Lily had become too old and infirm to act. Ethel was very anxious that all three Executors should go to Brett Holt to be introduced to the staff there, to make it easier and more straightforward for all concerned when the time came for them to act. Derek Goddard was unable to attend but on 17^th May 2004 Gladys and Angela Charles, during one of their visits to Ethel, went with her to Brett Holt and were introduced to the staff as her Executors.

Ethel also mentioned that she had changed her will to Iris Rayment, her neighbour. In view of what she had been told earlier, Iris asked whether Ethel was breaking her promise to Mabel and was told that she was not breaking her promise because she had only altered her part of the will. I need to treat Iris’s evidence at this point with some circumspection because she was under the impression that the alteration involved reducing the shares of Graham Jones because of an unfortunate remark made by his wife which got back to Ethel, whereas in fact Ethel gave no such instructions to the Solicitors. Iris may have been confusing two different events. Nevertheless, the fact that Ethel apparently referred to having made a promise to her sister is not without significance.

Ethel also appears to have discussed her 2003 will with Colin Last. He gave evidence that in 2003 she decided to have the will redrafted to exclude the people who had died and decided at the same time to make a few other alterations to “reward” the people in her life who had helped her. In his witness statement Mr. Last said that Ethel “clearly did not realise that it was a breaking of the agreement that she and Mabel had reached over the wills”, but in cross-examination he said that, although Ethel did show him the new will and that he was named as a beneficiary, he did not realise that the new will was a breach of the agreement. That is not consistent with his evidence about what he had been told earlier and I therefore treat his earlier evidence with caution.

At this point I should say something more about Mrs. Jill Fraser. Mrs. Fraser was not one of the beneficiaries under the 1991 wills but, after Mabel died, a rather curious incident took place. Ethel made a present to Mrs. Fraser and her partner of two tickets for a trip on Concorde. This was an odd present since Mrs. Fraser told me that she was frightened of flying but felt that could not decline the gift and had to get her doctor to prescribe her some Valium before she could go through with the adventure. When presenting the tickets Ethel said to Jill “You two deserve it”, apparently intending the present as a thank you for past kindnesses to Ethel and her sister. At the same time Ethel made various other small presents to people who had been kind to her and her sister, including her neighbour, Iris.

After Mabel’s death Jill would take Ethel shopping every week and do her hair for her on Saturdays. She and her partner, John Rose, also used to take Ethel to the Carvery once a month. In August 1999 Ethel had an accident when she fell down the steps at Epsom Station and broke her ankle. She was in hospital for 4 weeks during which time Jill visited her twice a week. When she came home, John Rose moved her bed and TV downstairs on her request. John would also go over and fix small household maintenance items for Ethel. It was no doubt because of these various kindnesses that Ethel wanted to include both Jill Fraser and John Rose in her will in 2003. Mrs. Fraser, however, was not one of the people with whom Mabel and Ethel had discussed their will. According to Mrs. Fraser all Ethel ever said to her on the subject was a remark in 2002/2004 “I have been a very good girl this week and changed my will. Derek will not be getting as much as the thinks.” In fact, Derek Goddard’s share had not been altered.

In May 2005 Ethel had a fall at home and stayed in hospital until the end of June. On her return home, she needed full-time care, which was provided by an agency called Country Cousins. She had a number of carers, the last of whom was called Kumbi and was with her for the final year of her life. She was now very weak and unsteady and needed a Zimmer to get around but still made a point of doing her own housework. Graham Jones and his wife Sue visited frequently and Jill Fraser spoke to her on the telephone every day and visited her more frequently than before. Derek Goddard also rang every week. Mrs. Fraser told me that Ethel was always very fond of Graham, who was of course the son of her dear friend, Lily.

In August 2006 Ethel asked Jill Fraser to make an appointment with Mr. Sudweeks of Brett Holt. She had not met Mr. Sudweeks before and it is something of a mystery how she knew his name. Mrs. Fraser duly rang Brett Holt and arranged for Mr. Sudweeks to call on Ethel at home. Mr. Sudweeks called on 24^th August 2006. Mrs. Fraser was present but went upstairs to Kumbi’s room and Mr. Sudweeks took Ethel’s instructions without anybody else being present.

Mr. Sudweeks’ handwritten notes of the interview are extant, as is his subsequent typed up attendance note. Mr. Sudweeks reported that Ethel was bedridden and clearly frail but was impressed by the quality of her hearing and formed the view that she seemed to be reasonably competent. One can tell, however, from what she told Mr. Sudweeks that she was quite severely losing her memory. She said she had a sister, Mabel, who had died and had lived in a nearby road in Stoneleigh. In fact of course the two sisters lived together from 1985 until 1995. She mentioned that she had made a previous will some years before but was not sure when. She could not identify the firm who prepared it for her but, from what she said about its location, Mr. Sudweeks deduced that it had been his own firm. So she must have been referring to the 2003 will. She could not remember the contents of her old will except that it mentioned her cousins.

Mr. Sudweeks asked whether she wanted to include any members of her family in her will and Ethel replied that she would rather give it to people who had been good to her and named Jill Fraser as such a person. When asked whether she wanted to make any provision in favour of charities, she replied rather sharply that she was the only charity. Mr. Sudweeks pressed her as to whether there was anybody else to whom she wished to leave her estate. She replied “I don’t think there is anyone else”. Mr. Sudweeks then asked where her nephews and nieces lived and she replied that the majority of them lived in Malvern and that they always kept in touch with her. Mr. Sudweeks asked how many nephews and nieces there were and Ethel replied “God knows. They come down here once or twice a week.” Subsequently Mr. Sudweeks asked the names of the people who lived in Malvern and Ethel said she could not remember their names. She was referring, of course, to Anne Thompson and Angela O’Neill, whom she had known and visited regularly for many, many years.

There is ample further evidence that at this stage Ethel was seriously losing her grip. Anne Thompson told me of an incident which probably occurred in September 2006. Anne used to telephone Ethel every other weekend for a chat. On this occasion Ethel described how she had visited her friend Lily in Islington and had a lovely day with her, notwithstanding the fact that at this point she was bedridden and had a 24 hour carer. Anne subsequently discovered from Kumbi that this had not happened and was something that Ethel had imagined. Iris Rayment told me that for the last 6 months of her life Ethel was very confused, to the extent that she was sometimes unable to recognise Iris. Angela O’Neill told me that she spoke to Ethel a couple of weeks before she died; that conversation was difficult; Ethel was incoherent and found it difficult to comprehend what was being said to her; she asked about Dolly, although Dolly had been dead for a long time; she talked about the garden centre they had gone to the week before, although they had done no such thing.

However that may be, Ethel struck Mr. Sudweeks as someone who still had her faculties and mental acuity. Nevertheless he thought it appropriate to seek support for that view and approached her GP. He was unable to assist, so Mr. Sudweeks obtained the details of a consultant psychiatrist from Epsom Social Services. The psychiatrist, Dr. Fottrell, visited Ethel on 11^th September. He spoke to Kumbi and then examined Ethel. In his report he described her as a charming 92 year old lady who was quite frail physically; she was not experiencing any physical pain, was happy with her surroundings and there was no evidence of any clinical depression; she was not under the influence of delusions of any kind; she scored 7 out of 10 in the abbreviated mental test score. She seemed to Dr. Fottrell to have a good understanding of events and people around her involved with her care. He asked about the expectations of the members of her family and reported that she was quite clearcut in her views about this and was quite adamant about whom she thought should and should not benefit from any decision she made in her will, but he does not say what she said. He recorded his impression that Ethel was probably suffering from mild dementia, probably of a vascular type, but still had the capacity to make or change a will and expressed his professional opinion that she had testamentary capacity.

Thus reassured, Mr. Sudweeks prepared a very short new will whereby Ethel revoked all former wills, appointed Jill Fraser her sole Executrix and devised and bequeathed the whole of her real and personal estate to Jill Fraser. Although he was aware that his firm had been involved in drafting a will for Ethel some years earlier, he did not think it necessary to look out the previous will since he regarded Ethel’s instructions as very clear.

On 21^st September 2006 Mr. Sudweeks went back to see Ethel accompanied by a secretary, Angela Perez. He explained the terms of the will. Ethel read it through and confirmed that it was correct. She then signed it in the presence of Mr. Sudweeks and Miss Perez. Mr. Sudweeks explained that, because there was no alternative to Jill Fraser in the will, if Jill predeceased her, it would be as though she had died intestate and her estate would go to the surviving members of her family, if there were any. He recorded in an attendance note that she clearly indicated that this was not something she wanted to happen. They discussed suitable substituted beneficiaries. The so-called nieces and godchildren were mentioned but she appears to have told Mr. Sudweeks they were Mabel’s godchildren, not her’s. Ultimately Ethel agreed that the appropriate substitution would be Jill’s children. When Mr. Sudweeks was about to leave, he went back and asked whether she wanted to consider also including some provision for Kumbi. She agreed that that was a good idea and settled on the sum of £10,000.

Mr. Sudweeks went away and drew up a further will to accommodate those amendments. On 26^th September 2006 he and Miss Perez went back and witnessed Ethel executing the amended will.

Ethel died on 11^th November 2006. Probate of her will was granted to Jill Deborah Fraser on 3^rd April 2007. The net value of her estate was estimated to be £401,573. In fact when 14 Woodstone Avenue was sold, the assets of the estate came to £466,469 odd which left £384,684 odd when the legacy to Kumbi, Inheritance Tax and the various liabilities of the estate had been paid. Of that, as I understand it, some £307,675 has been paid out to Jill Fraser with the balance currently being retained by Brett Holt.

In July 2009 Mrs. Fraser sold her home in Elmwood Drive for £215,000 and bought a house at 3 Garlick Hill Road, Epsom Downs for £362,500. The purchase was funded by the sale of her previous house and out of her legacy. She told me that she had since spent some £60,000 on the new house. She was shown a letter of 13^th November 2007 from the Claimants’ Solicitors asking her to take no further steps to distribute or wind up the estate until they had completed their enquiries and another letter dated 20^th October 2008 which notified her that Clifton Ingram were representing the Claimants under a conditional fee agreement, enclosed copies of both Mabel and Ethel’s 1991 wills and the 1993 codicils and witness statements from Angela Charles and Anne Thompson. The letter went on to contend that, because the wills had been mutual wills, Ethel’s estate fell to be distributed in accordance with her 1991 will and called on Mrs. Fraser to refund the net estate for distribution among the beneficiaries there named. Mrs. Fraser agreed that she had seen both letters and knew that Ethel’s final will was being disputed.

I take the law on mutual wills to be as follows:

The mere execution of mirror or reciprocal wills does not imply any agreement either as to revocation or non-revocation. (Footnote: ²)

For the doctrine to apply it is not necessary that the second testator should have obtained a personal financial benefit under the will of the first testator (Footnote: ³) (albeit that in the present case Ethel had, of course, done so).

It is perfectly possible for there to have been an agreement preventing revocability as to part of the residuary estate only, in which case the doctrine only applies to that part. (Footnote: ⁴)

The agreement may be incorporated in the will or proved by extraneous evidence. It may be oral or in writing.

The agreement must be established by clear and satisfactory evidence on the balance of probabilities. (Footnote: ⁵)

The agreement is enforced in equity by the imposition of a constructive trust on the property which is the subject matter of the agreement. (Footnote: ⁶) The beneficiaries under the will that was not to be revoked may apply to the Court for an order that the estate is held on trust to give effect to the provisions of the old will.

The action relates only to the disposative part of the will. The new will is fully effective to deal with non-disposative matters, such as the appointment of Executors. Accordingly where the doctrine applies the Executors appointed under the final will hold the assets of the estate on trust to give effect to the earlier will.

The issue for the Court is therefore, as Counsel agreed, whether the evidence justifies a finding that Mabel and Ethel committed themselves to testamentary dispositions which, so far as the survivor was concerned, were to be irrevocable. In approaching that question I should bear in mind that people do not usually want to give up their freedom of testamentary disposition and preclude themselves from changing their will in the light of later events. In Re Goodchild, Leggatt LJ emphasised this when he said:

Miss Da Costa, Counsel for Mrs. Fraser, reminded me in this connection of the observations of Lord Nicholls in Re H&R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 to the effect that, when deciding facts according to the standard of the balance of probability, the Court will have in mind the inherent probability or improbability of the event sought to be proved when deciding whether, on balance, that event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

On behalf of Mrs. Fraser, Miss Da Costa made the following points:

neither the wills nor the codicils contained any language suggesting that the sisters had agreed that their wills were to be mutual or irrevocable;

the fact that Ethel made a new will in 2003 shows clearly that she did not regard herself as having made an agreement not to alter or revoke her will after her sister’s death.

The Claimants, Angela Charles, Derek Goddard and Anne Thompson bring this claim on behalf of all the beneficiaries under Ethel’s 1991 will. The other beneficiaries were given notice of the claim pursuant to Civil Procedure Rules 19.8A following an order of Master Bragge made in a Case Management Conference on 22^nd January 2010 and will be bound by this judgment as if they were parties. Miss Counsell, Counsel for the Claimants, submitted:

the existence of an agreement was attested by eight witnesses whose evidence as to the nature of the relationship of the two sisters and their discussions about “the will” were consistent;

the terms of the agreement were clear: the estate of the first sister to die would pass to the second sister and the property of both would pass thereafter to the agreed beneficiaries;

when Ethel made a new will in 2003 (which was 12 years after the 1991 wills were made and 8 years after Mabel’s death) Ethel viewed this as a “tidying up” operation and thought she was abiding by the agreement in that the will remained in substantially the same form and the bequests to Mabel’s chosen beneficiaries were not altered.

In my judgment, a Court has to approach oral evidence of the kind that was given by and on behalf of the Claimants in this case warily and with appropriate scepticism. First, I bear in mind the inherent improbability of a testator being prepared to give up the possibility of changing his or her will in the future, whatever the change of circumstances. Secondly, I take into account that a number of the witnesses who gave evidence that the sisters said they had made an agreement and that the wills could not be changed had a financial interest in the outcome of the case. I do not mean by that that I think for a moment that anybody was being dishonest. My impression of all the ladies who gave evidence before me was that they gave their evidence honestly and scrupulously and, having taken the oath, would have been shocked at any suggestion that they might do otherwise. Nevertheless, one is aware from experience of the ability of the human mind to “remember” what a person wishes to remember.

Thirdly, one is only too well aware of how easy it is, when witness statements are being drafted by solicitors, for the recollections of the witnesses to be subtly improved in the direction the party calling them wishes to go. There are some kinds of case, of which perhaps this is an example, where it would make it easier for the Court to assess the evidence if it were given in chief viva voce instead of by carefully drafted witness statements.

Fourthly, if the two sisters told many of their friends and relations about their agreement and if, as Mr. Last said Ethel told him they had, they told their Solicitor, it is remarkable that he did not include any recital of it in the wills he drafted for them or make any other record of it. Mr. Bell suggested to me that this might have been because the law had moved on since 1991 and the need for there to be an agreement not to revoke may not have then been fully appreciated. I do not accept that. It is true that there have been several reported cases about mutual wills since 1991 but the law has not, so far as I can see, changed in any material respect, although its requirements have been emphasised. I think it was the plain duty of any solicitor, then as now, faced with two sisters wishing to make reciprocal wills, to ascertain their intentions as to revocation, to advise as to the effect of making mutual wills and to ensure that any agreement the testatrices wished to make was clearly and accurately recorded. The fact that Mr. Collins does not appear to have done this in 1991 is a powerful point in Miss Da Costa’s favour. It cannot, however, be conclusive because it is perfectly possible that Mr. Collins did not have the requirements of the law clearly in mind, did not do a very good job or did make some record which has been lost (no notes from the original file survive).

In the course of being cross-examined, Mr. Bell referred to the fact that he had had a conversation with Mr. Collins before Mr. Collins died, which was the subject of an attendance note. He then produced the note, which recorded a telephone conversation he had had with the Claimants’ Solicitors on 29^th November 2007 in which he had recorded that he had spoken to Mr. Collins “and that his view was that the wills were mutual”. We do not know, however, on what basis Mr. Collins expressed that view or, indeed, exactly what he meant and I attach no more importance to that evidence than I do to Mr. Bell’s own equally unexplained view expressed in his witness statement that he would be very surprised if the sisters had not intended their wills to be mutual wills.

Ultimately I am swayed by the following factors to accept that in all probability there was an agreement between the sisters at the time they made their 1991 wills that each would leave her estate to the other and that the survivor would leave what remained of their conjoined estates to the beneficiaries and in the shares stipulated in clause 5 of the wills. They made mutual promises to each other and it was either an explicit or implicit part of those promises that the will of the survivor would not be altered so as to change those gifts. The way in which the shares of the beneficiaries were calculated and divided equally between the friends and relatives of the respective sisters indicates this (though it is not enough on its own). It is clear that each sister was conscious that the assets of the survivor would derive in part from the family of the first to die, in particular the estate of her deceased husband, and ought, in fairness, to be shared equally with that sister’s family. Moreover, the evidence of Angela Charles, Anne Thompson, Angela O’Neill, Marilyn Brenard and Iris Rayment as to what the sisters said before Mabel’s death and what Ethel said after Mabel’s death was largely unshaken in cross-examination, was not shown to contain inconsistencies and was given in a convincing, frank and open manner. The weight of the evidence that there had been an agreement and that part of it was that the wills were not to be changed was such that the Court would need strong grounds for rejecting it.

Ethel’s conduct in making a new will in 2003, is I think, to be explained in terms of her having taken the view that it would be alright if she simply changed her gifts and not Mabel’s. The fact that the will remained in the same form, that the number of shares allotted to Mabel’s beneficiaries were not affected and that Ethel acknowledged to Iris Rayment that she had made a promise to Mabel tend to confirm that there had been an agreement between them of the kind alleged. It was simply that at that stage Ethel had either forgotten, or perhaps no longer appreciated, the full force and effect of the agreement which she had made or felt that she was not violating the spirit of the agreement and that it was alright to change “her part”.

I should perhaps, record that neither party argued, in the alternative to their primary contention, that the sisters’ agreement had been that the survivor should not alter the other’s “bequests”; leaving her free to alter her own. That would be a way of reconciling Ethel’s conduct in 2003 with her having made a binding promise to her sister, but would not have been easy to reconcile with the evidence of what the sisters had told others. Miss Da Costa submitted that what Ethel did in 2003 showed that, whatever the sisters thought they had agreed in 1991, they had not been ad idem and so there was no agreement. In my judgment, however, it is clear that the sisters reached agreement. The only question is whether (a) they agreed that the will of the survivor was to be irrevocable, (b) they agreed that the will of the survivor was to be irrevocable in part or (c) they made no agreement as to revocation. Neither party contends for (b) and the evidence as a whole does not support either (b) or (c).

I therefore find as a fact that there was an agreement between the sisters in 1991 that:

in the event of any beneficiary predeceasing the surviving sister their share would lapse and be taken by the remaining residuary legatees whose share would be increased proportionately; and

the respective wills were not to be altered after the death of the first of the sisters.

In their Particulars of Claim the Claimants claimed revocation of the grant of probate of the will dated 26^th September 2006; that the Court should pronounce against the validity of the wills dated 2^nd September 2003 and 21^st and 26^th September 2006 and that the Court should pronounce for the force and validity of the will dated 22^nd January 1991. As I indicated at the hearing, I do not believe that this is the appropriate form of relief and I will hear Counsel on the terms of the appropriate order and ancillary matters.