Supreme Court
Civil Action No. 444 of 2001
8th May, 2002.
Awich, J.

Mrs. Denise Courtenay, for the Applicants
Respondent in Person.

J U D G M E N T

1. Notes: Mutual will: Mutual will cannot be revoked or varied after the death of the first testator/testatrix may be revoked or varied on notice to the other testator/testatrix during lifetime; subsequent marriage of the testator/testatrix does not revoke his/her mutual will, second spouse after the death of the first is entitled to his/her share of investment and or contribution to the new matrimonial property and his/her share of the matrimonial property does not form part of the estate of the testator, the subject of mutual will.

2. The Facts: The Two Wills of Husband and Wife Made Simultaneously.

Mr. Eric William King, the testator, and his wife, Isabella Tolmie King, the testatrix, each made a will on 15.12.1978. The wills were identical except, of course, for the description of the makers as the testator or the testatrix, their names and signatures. Each will appointed the surviving spouse and their children, Andrae McKenzie Roe and Alistair McKenzie King, the executors and trustees of the will. And each will, after directing payment of funeral expenses and debts of the testator or testatrix, gave "all real and personal property whatsoever and wheresoever... upon trust to the wife (or husband)..." and in the event that the wife or husband should predecease, "upon trust for ... the two children," of the testator and testatrix.

3. Paragraph 2 in each will stated the reason for making the two simultaneous wills and proceeded to spell out the legacies. I set out here paragraph 2 in Mr. King's will as an example; it stated:

"2. WHEREAS my wife Isabella Tolmie McKenzie King and I have agreed with one another (sic) to execute wills of even date and in similar terms and have further agreed that such respective wills shall not hereafter be revoked or altered either during our joint lives or by the survivor after the death of one of us, now in reliance upon such agreement I HEREBY give all my real and personal property whatsoever and wheresoever including my property at No.5 Orchid Gardens, Belmopan Belize, and any property over which I may have general power of appointment or disposition by will to my trustees upon trust to sell, call in and convert the same into money with power to postpone the sale calling in and conversion thereof for so long as they shall in their absolute discretion think fit, without being liable for loss, and to hold the proceeds of such sale calling in and conversion and my ready money (hereinafter called my residuary estate) upon the following trust:

(a) Upon trust to pay thereout my debts and funeral and testamentary expenses and subject thereto upon trust for my wife TOLMIE MCKENZIE KING absolutely.

(b) If my wife ISABELLA TOLMIE KING nee MCKENZIE should die in my lifetime then upon trust for my two children by my wife TOLMIE MCKENZIE KING, ANDRAE MCKENZIE ROE, nee KING and ALISTAIR MCKENZIE, in equal shares;

(c) If any of my two children hereinbefore mentioned has already died or shall die during my lifetime, but leaving a child or children alive at or born after my death who shall attaint the age of eighteen years or marry under that age, then such child or children shall take absolutely and if more than one, in equal shares the share or shares in my residuary estate which such deceased child of mine would have taken if he or she had lived to attain a vested interest.

IN WITNESS whereof I the said ERIC WILLIAM KING have to each sheet of this my will in this and the preceding sheet of paper contained set my hand this FIFTEENTH day of DECEMBER, 1978."

4. Isabella died in 1987 leaving her will unrevoked. Thereafter Eric lived with Blanca Lidia Vega, the Respondent, who had been the couple's domestic helper, and eventually married her on 6.3.1999. On 29.12.1997, some 19 years after his will of 15.12.1978, Eric made a document he described as; "a Codicil to the joint will of Isabella (Sybil) Tolmie King nee McKenzie (now deceased) and Eric William King, dated 15.12.1978." The terms of the document departed from those in both the earlier wills by devising certain interests in immovable property to Blanca and by bequeathing to her some monies that he regarded as due to her by reason of her past employment as a domestic helper. The interests in property devised to Blanca were: (1) 25 acres of land, block 23 in the BBC Agric. Layout in the Mount Pleasant Area, free of encumbrances; (2) leasehold interest in lot 2062, San Martin, Belmopan, presently held by Blanca, to be "bought as freehold" and (3) living in right in No. 5 Orchid Gardens, Belmopan, until she decides to leave. The monies that Eric directed to be paid to Blanca or in her favour were: (1) employment severance pay at $150.00 per week due on employment commenced in February 1987; (2) gratuity of $5000.00; and (3) payment of the loan in the name of Blanca at the Holy Redeemer Credit Union, out of the estate.

5. Erie also directed that $5,159.25 spent by Alistair for purchases made on behalf of the testator be paid to Alistair. Otherwise Eric left the rest of the will unchanged, which meant that the rest of the estate would go to the children as was in his original will and that of his deceased wife, Isabella.

6. Eric died on 27.7.1997, a little short of two years of making the "Codicil." He was survived by his second wife, Blanca and his two children Andrae and Alistair, the applicants herein.

7. The Application to be Decided (the Applicant's Case.)

Andrae and Alistair have challenged the "codicil" on the grounds that the will made by the testator, their father, on 15.12.1978 and that made by the testatrix, their mother, on the same day were mutual wills, and so, the testator could not change the terms of his mutual will by the "codicil" to the extent that any provision in the "codicil1 was inconsistent to those in the testator's mutual will, nor could the remarriage of the testator to the Respondent revoke his mutual will, and further, that as the consequence of the mutual will, the estate of the testator is now held on trust for the benefit of the applicants in accordance with the terms in the testator's mutual will. They have applied by originating summons for the declarations of this Court to effect their claim in the following terms.

8. "(1) The Mutual Will of Eric William King deceased, dated December 15th, 1978 and his Codicil dated December 29th, 1997 together constitute; his last will and intention and are entitled to probate.

   (2) The said Will is subject to a trust for the performance of an agreement arising from the Mutual Wills dated December 15th, 1978 and executed by the said Eric William King, deceased, and Isabella Tolmie King, deceased, respectively.

   (3) Under the said trust Executors and Trustees of the estate of the said Eric William King, deceased, hold all his real and personal property, subject to the payment of taxes, funeral, testamentary and administration expenses, and debts upon trust for Andrae McKenzie Roe and Alistair McKenzie King in equal shares.

   (4) The portion of the said "Codicil" inconsistent with this trust shall be excluded from probate."

9. The Respondent's Case.

The originating summons was directed to Blanca Lidia Vega who was called upon to enter appearance. She attended the hearing in person. It was, of course, beyond her to present any legal argument. She made the simple factual points that she looked after Isabella (the testatrix) during her long illness and consorted with Mr. King even before Isabella died, with her approval. Further, that when Eric was widowed she worked hard to assist in Eric's business which was not doing well anymore, she even lent her name for the purpose of borrowing money from the Holy Redeemer Credit Union for Eric's business because Eric was a proud man who did not wish to be known to borrow money. She in particular urged the Court to consider her right in one immoveable property, lot 2062 San Martin, Belmopan, which she said was acquired and improved through money she raised by selling food; she now lives on the property. She asserted that she was the "exclusive" owner. She also said that the 25 acres of property at Mount Pleasant was acquired in 1988, after the death of the testatrix, and suggested that the claim of "the children" would be for the properties acquired when their mother, Isabella, was alive.

10. Determination:

(Identifying the Deceased Estate of King and Identifying Portion of Matrimonial property to which Blanca is Entitled).

The difficulty in this case is not in the points of law that arise because of the two wills and the "codicil," rather, it is in identifying what may be regarded as belonging to the estate of Eric King from what may be viewed as property or part of property which is the result of investment or which accrued to both Eric and Blanca, because of cohabitation, first as man and woman partners, and subsequently as husband and wife, and out of the joint; cohabitation property and matrimonial property, the share of Blanca alone. Eric's share will of course be included in the deceased estate. The Court raised that difficulty at the hearing. Mrs. Courtenay, learned counsel for the applicants, answered that this case was about the estate of Eric King, not about what belonged to Blanca which definitely would be given to her. Mrs. Courtenay was technically correct, nevertheless, the difficulty about what belongs to Blanca will loom large at the stage of gathering the estate and drawing up the liquidation and distribution accounts of the estate and in the actual distribution of the estate. Related to that difficulty will be the difficulty in getting the non-legalistic mind of Blanca to comprehend that intricate' difference, a matter of points of law.

11. What belongs to Blanca, and something must, as the result of her contribution and cohabitation with Eric as his partner and later as his wife, is a claim to part of what I shall describe as the "cohabitation property" and matrimonial property, as opposed to property of the deceased which has become the deceased estate of Eric William King and is the subject of his will.

12. About property acquired during marriage or cohabitation of unmarried partners, I wish to point out that the law has developed to a point where even property acquired by unmarried couple is now regarded as property held in trust for sale in the event of termination of the cohabitation without marriage - see Ever's Trust Papp v Ever's [1980] 3 All ER 399. The point was mentioned in this Court in, Dana Vega V Margarita Vega, Supreme Court of Belize Action No.520 of 2000, at paragraph 18.

13. I hope that Blanca's share will be ascertained and given to her. Her entitlement includes her share of cohabitation property or matrimonial property, and payments due on her employment. In addition she may claim, like any creditor upon proof of claim, payment from the estate for the loan that she testified' was obtained in her name, but for the used of Eric. Those items of Blanca's entitlement do not depend for their validity on the "codicil," although some contents of the "codicil" may provide some evidence to prove some of the claims such as payments due on employment and loan taken in her name at the request of Eric for his use. The "codicil" may even provide evidence of what may be identified as matrimonial property acquired during Blanca's cohabitation and marriage to which she is entitled to part.

14. It was after the hearing had concluded that I thought this was a case that might have warranted legal assistance and maybe an amicus curiae would have been of help to the Court and Blanca, because of the difficulty in the case.

15. Determination:

    (The Two Wills)

As far as the two wills of Eric and Isabella are concerned, it is my view that the evidence that Eric and Isabella entered a binding agreement, a contract, to make separate, but binding mutual wills have been clearly set out at paragraph 2 of each will in identical words as follows:

16. "WHEREAS my wife, Isabella Tolmie King, nee McKenzie, (or my husband, Eric William King) and I have agreed with one another (sic) to execute wills of even date and in similar terms and having agreed that such respective wills shall not hereafter be revoked or altered during our joint lives or by the survivor after the death of one of us, now in reliance upon such agreement I hereby give all real and personal property whatsoever and wheresoever … to my trustee upon trust…"

17. It follows that the two wills, of Eric and of Isabella respectively, made on 15.12.1978 were binding and were mutual wills; the law of constructive trust must apply to the mutual wills to enable otherwise non parties, Andrae and Alistair, to enforce the terms of the contract in the mutual wills. I must emphasize, however, that their rights are derived from the trust created, a matter of trust and not of contract. I must also point out that the agreement to revoke or alter the wills enjoins the testatrix and the testator not to revoke or alter their wills only upon the death of one of them, it does not enjoin them during the lives of both of them, provided the person who wishes to alter or revoke his or her will has given notice to the other. The Common Law liberty to make, alter and revoke a will cannot be taken away by agreement.

18. I accept that the law regarding the trust created by mutual will is as stated in a case in England, Re Goodchild (deceased) Goodchild and Another v Goodchild [1996] 1 All ER 669, the case cited by Mrs. D. Courtenay. The statement of the law therein is that: "Under the doctrine of mutual wills, if it was established that there was a clear agreement in the wills or elsewhere, that (the wills) were to be mutually binding……, the law would give effect to that intention by way of a floating trust which became irrevocable following the death of the first testator and crystallized on the death of the second. The floating trust created was not destroyed by the remarriage of the second testator after the death of the first."

19. The facts in Goodchild were similar to the facts in this case. The facts were as follows: On 12.12.1988 the mother and father of the first plaintiff each simultaneously made a will identical to the other in which each devised and bequeathed property to the survivor of them and thereafter to their son, the first plaintiff; and his wife, the second plaintiff. The mother died first and the father proved her will and took benefit thereunder. The father subsequently remarried and made a new will leaving everything to the second wife, the defendant. It seemed some of the reasons for that were that the testator had been displeased with the way the plaintiff had conducted business which he had got inter vivos from his parents, the plaintiff and his wife ignored and did not invite the testator to their house often enough after he had been widowed and the behavi9ur of the plaintiff's, son, the testator's grandson, at the testator's wedding to the defendant. The plaintiff and his wife brought proceedings against the defendant claiming that she held the testator's estate in trust for the benefit of the plaintiffs, to give effect to the provisions set out in the parents' mutual wills, and for an order under Section 2 (a) of the Inheritance (Provision for Family and Dependant) Act, 1975, of England, for reasonable financial provision to be made for the first plaintiff out of the testator's estate. The Court, Chancery Division in England, held that on the evidence (which was extensive), the plaintiffs had not established the existence of a specific agreement that the two wills were mutually binding. The declaration that the wills were mutual wills refused. The Court, however, in what it described as the exceptional circumstances of the case, made an order providing for the son, the first plaintiff; under the Inheritance Provision for Family and Dependant) Act, on the basis that, "given the son's needs at the time of the father's death, it was not reasonable for the father to treat himself as free to disinherit the son;" It is difficult for one far away in Belize to appreciate the finding of facts in Goodchild that there was no agreement that the wills were to be mutually binding, especially when in several similar cases the Opposite findings of facts that firm binding agreements existed in the wills have been made.

20. The law about mutual will, which may be a joint will or separate wills, has been accepted in several subsequent judgments in England, to have been propounded long ago in the judgment of Lord Camden on 18th July, 1769 in Dufour v Pererra 1 Dick 419; Hargr. Jurid. But much development through other landmark cases have taken place, and I dare say, with much modification which may even be viewed as departure from the ratio decidendi in Dufour v Pererra. For example, it has been clarified over and over again that for the doctrine of mutual will trust to operate, it was not necessary that the survivor should have proved the will of the first to die and to have taken benefit under it. - see Re Dale (deceased) Proctor v Dale [1993] 4 All ER 129, another case cited by Mrs. Courtenay. In the case, husband and wife made identical wills, leaving nothing to each other, and everything to the son and daughter in equal shares. The husband died first and of course, the wife did not benefit from his will. Subsequently she changed her will by leaving a great deal more to the son. The daughter succeeded in the preliminary issue that assuming there were mutual wills, it was not necessary that it be shown that the mother had benefitted out of the mutual will of the father in order for the mother to be bound not to revoke or alter her own will. That seemed to have over-ruled, Stone v Hoskins (1905) P.D. 194, another English case.

21. Three other notable cases; R. Cleaver (deceased) Cleaver v Insley and others [1984] 2 All ER 1018; In re Oldham, Hadwen v Myles [1924] 1 Ch. 75; and Gray and Others v Perpetual Trustees Co. Ltd. and Another [1928] AC 391 PC, made the point that the mere making of simultaneous wills or wills in similar terms without agreement that parties are bound, do not make the wills mutual and binding wills, although that may be circumstantial evidence of the agreement.

22. In Oldham, husband and wife made wills simultaneously. Besides two minor gifts made by the husband, the two wills were identical, and left everything to the survivor of them absolutely and thereafter the residuary interest to their children and failing such children to certain relatives of the husband and of the wife and mutual friends. They never had children. The husband died first. The wife, then aged 64, re-married Mr. Oldham, a man 35 years younger, and on the same day changed her will, left life interest to Oldham and then almost, if not entirely, everything to her own relatives. The Court did not find, "in the circumstances, binding agreement and therefore did not find mutual wills proved. But in Re Cleaver, husband and wife left property to the survivor of them also absolutely and thereafter to the three children of the husband, the daughter to have only life interest in one-third, a way not to confer benefit on her husband, and because the testator detested the way the daughter had obtained the estate of her aunt. After the life interest of the daughter the two sons would take the residuary interest in equal shares. After the death of the husband the wife took benefit from his will. She acknowledged in a discussion, her obligation in her identical will. She, however, changed her will several times, first effecting inconsequential changes, but in the last will she left everything to the step daughter and her husband. She had moved and lived with the step daughter until her death. The Court held that the testatrix's will and that of her husband were mutual wills, there had been clear evidence to prove, on balance of probabilities, that there had been agreement between the testator and the testatrix that they would execute mutual wills to dispose of their property in identical terms in pursuance of the agreement.

23. Most of the landmark cases concern spouses having made mutual wills and after the death of one of them, the other revoked or varied his or her will. The rules about mutual wills, however, are not limited to spouses.

24. Determination
    (Declarations Granted)

I have already accepted that there has been proof that the will of Eric William King and that of Isabella Tolmie King were wills made on a firm contract to devise and bequeath property in the terms agreed and included in the wills and on a firm agreement not to revoke the will. Applying the rules of mutual wills to the facts of this case, it is clear that the declarations sought at paragraphs (1) to (4) of the application merely asked for declarations that are no more than the result of the application of the rules of mutual will to the facts. The points made by Blanca are not material to the determination as to whether or not to grant the declarations. The points are relevant to identifying assets that may or may not be included in the estate of Mr. King and to proof of claims against the estate. I grant all the declarations (1), (2), (3) and (4) in the originating summons dated the 3rd day of September, 2001, filed at Court on 4.9.2001.

25. Costs

In the circumstances of this case, and given the fact that Blanca Lidia Vega did not seek to contest the declarations sought, and limited her case to urging that her own efforts that contributed to some of the assets that may be gathered when the estate is assembled be taken into account, and that a loan to Eric was taken in her name, I do not order any costs against her. The order for costs is that parties bear own costs.

26. General Observation

I would like to observe, and it should be noted that when the stage is reached when the deceased estate of Eric William King is being gathered and claims against it are to be proved and liquidation and distribution accounts are to be drawn, care should be taken not to include in the estate of King, portions of matrimonial property that are the entitlement of Blanca, which she earned as the result of her cohabitation as partner and subsequently as wife, of Mr. King, and as the result of her own industry. Blanca is entitled to an opportunity to prove her claims in the usual way.

27. Pronounced this Wednesday the 8th day of May, 2002.

At the Supreme Court,
Belize City.

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