Academic journal article Melbourne University Law Review

Mutual Wills: Contemporary Reflections on an Old Doctrine

Academic journal article Melbourne University Law Review

Mutual Wills: Contemporary Reflections on an Old Doctrine

Article excerpt

[Mutual wills are one of a range of solutions providing for a form of family property in common law jurisprudence. The doctrine of mutual wills also operates in support of contracts for the benefit of third parties. With the settling of the doctrine of privity in 1861, some regard the survival of mutual wills as anomalous. A close analysis of the foundation case for the doctrine, Dufour v Pereira. provides insights into the relationship between probate and equity, and common law and equity, in the late 18th century. It was a common law solution laced with arguments of the civil law. While the decision was ultimately resolved as a matter of English law, its civil law 'shadow' left questions hanging. In the unravelling of those issues within the common law, the developments in equitable doctrine ultimately caught up with the 'anomaly'.]

CONTENTS

I    The Context for Reflection
II   The Doctrine of Mutual Wills
         A Definitions and Differences
         B Elements of the Doctrine
         C Why Make Mutual Wills?
         D Origins of the Doctrine
III The Doctrine in Operation
         A The Probate versus Equity Effects of the Doctrine
         B Ability to Revoke the Will
              1 The First Party Dies Leaving the Will Unrevoked
              2 The First Party Dies Having Revoked His or Her Will
         C Is Benefit to the Survivor Necessary?
         D Nature of the Obligation on the Survivor
         E Third Parties
IV  Contemporary Reflections
         A Basis in Contract
         B An Anomalous Doctrine?
         C From Civilian Doctrine to Common Law
V   Conclusion

I THE CONTEXT FOR REFLECTION

The doctrine of 'mutual wills' dates back to the late 18th century, when it was established in Dufour v Pereira. (1) The case 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. The enforcement of the promises through the medium of a constructive trust lay at the heart of the doctrine. In this way the doctrine functioned as a form of private ordering of property in a context which operated to the benefit of third parties. With the settling of the doctrine of privity of contract in 1861 (2) and its exclusion of third parties who were not 'privy' to the contract, the survival of mutual wills was arguably an anomaly. Since then the law with respect to contracts has developed considerably, and, along with the expansion of equitable responses to situations that are seen as unconscionable, the status of mutual wills as anomalous requires review.

This article returns to Dufour to consider how mutual wills found their way into English law and how this affected the development of the doctrine to the present day. Through such an analysis, some of the elements of the doctrine may be tested, defended or questioned, and then placed into a contemporary context. The early decision in Dufour was curious due to the influence of civil law ideas and the language of Lord Camden's judgment, which left a series of unresolved questions issues to be unravelled later as common law (3) questions in the development of the doctrine in English, and later Australian, law. This article shows how the unravelling of those issues and the developments in equitable doctrine since the mid-19th century have ultimately caught up with, and overtaken, the anomalous status of the doctrine as a consequence of privity, ft provides contemporary reflections on the old doctrine of mutual wills in order to give a more thorough and contextual understanding of how the doctrine came to be part of the common law and how it sits in present day jurisprudence.

II THE DOCTRINE OF MUTUAL WILLS

A Definitions and Differences

Mutual wills arise where two (or more) people have made an agreement as to the disposal of their property through wills and each has, in accordance with the agreement, executed a will. …

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