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Till death us do part

Two recent cases highlight the problems surrounding constructive trusts and the operation of mutual wills. But is there any alternative? asks Mark Pawlowski

2 August 2002

The doctrine of mutual wills continues to raise interesting legal questions for both the academic and legal practitioner. In Re Goodchild [1997] 1 WLR 1216, the Court of Appeal, rejecting a suggested analogy with secret trust cases, held that a binding legal contract was required for the doctrine to operate. The recent decision in Healey v Brown [2002] 19 EG 147 (CS) has now confirmed that s 2 of the Law of Property (Miscellaneous Provisions) Act 1989 applies to a contract made between testators making mutual wills so it is unenforceable at law. Equity, however, will intervene to impose a constructive trust over the property and prevent any unconscionable dealing with it which frustrates the parties’ expectations. However, for the constructive mechanism to apply, it is necessary to show a mutual agreement not to revoke the mutual wills. This principle was applied recently in Birch v Curtis [2002] 26 EG 139 (CS), where it was confirmed that the making of similar (corresponding) wil...

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