Mutual Wills: A Brief Update
As I noted earlier this week, I attended the CLE program “Beyond Wills and Estate Planning Essentials”. I’d like to take just a few minutes to share just one of the topics presented which has somewhat surprisingly received a great deal of judicial treatment in the last few years. The concept of Mutual Wills was presented by Mary-Alice Thomson giving insight into its recent treatment.
The Doctrine of Mutual Wills can trace its principle back to Dufour v. Periera (1769) 21 E.R. 322. The principle is largely characterized by the involvement of two persons who make an agreement respecting the disposition of their estate, where one person dies having kept the agreement, thereby binding the survivor. Equity will enforce a trust on the estate of the second person to pass away.
In the last few years, this concept has been raised in many commonwealth countries, and the following are the some of recent cases Ms. Thomson briefly discussed:
- Powell v. Glover, 2008 ABQB 532;
- Atha v. Thompson, 2008 BCSC 1075;
- Brewster v. Lenzi, 2010 BCSC 1488;
- Charles & O’rs v. Fraser [2010] EWHC 2154 (Ch) High Court of Justice (Chancery Division); and
- Bauer v. Hussey & Anor., [2010] QSC 269.
The above list merely skims the surface of recent case law. It should be noted that Charles & Ors v. Fraser, finds mutual wills between two individuals who were not in a spousal relationship; an apparent first in the field. Given, the rapid nature with which these cases are being heard we may soon see an even greater change in the law.
Have a great weekend,
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
