Grime v 8

Grime v 8 - [1937] HCA 52 - HCA 1937 case summary — Zoe

[63]

or friends of the husband. The executor of the husband's will is also a defendant. He has been joined as a respondent to the appeal. The plaintiffs claim specific performance and other remedies in relation to an agreement which they allege was made between the husband and the wife. The wife came into a very substantial amount of property under the will of an uncle. The husband had no property. The learned trial judge (Gavan Duffy J.) has found that an agreement was made between the husband and the wife according to which the wife, instead of leaving her property to the husband for life and then to certain relatives, should, after giving certain legacies, leave the residue to her husband, he in turn promising that he would leave his property to those relatives and that he would not alter the will so leaving it. Wills in the agreed terms were made; the wife died; the husband subsequently made a different will under which the appellants are substantial beneficiaries and under which the wife's relatives respectively take either no interest or a much smaller interest than under the will made in pursuance of the agreement. His last will was made in breach of the agreement but it was nevertheless effective as a will. A will "is by its very nature and in its very essence a revocable instrument" (In the Estate of Heys (1) ). Thus probate has rightly been granted to the husband's last will, but that fact leaves for decision the question whether or not the agreement which the learned judge found to have been made can, notwithstanding the terms of the last will, be enforced. There was evidence which, if believed, justified the learned judge in finding that the existence of the agreement in the terms already stated was established. Those who undertake to establish such an agreement assume a heavy burden of proof. It is easy to allege such an agreement after the parties to it have both died, and any court should be very careful in accepting the evidence of interested parties upon such a question. Perhaps most husbands and wives make wills " by agreement," but they do not bind themselves not to revoke

[77]

In this case it is not contended that all the necessary parties are not before the court. Upon the basis of the law as declared in the authorities mentioned and upon the findings of fact made by the learned judge, an order was made declaring that Grace Alexandra Russell entered into the alleged agreement as trustee for and on behalf of the plaintiffs and that the agreement is binding upon and enforceable against the executors of the husband. In my opinion this order is appropriate in its terms. : _ The only other matter which it is necessary to consider arises . upon the Statute of Frauds. At the time when the agreement was made and also at the time of her death Mrs. Russell owned real estate. Her husband owned real estate at the time of his death. The agreement was verbal. It is said that therefore no action can be brought upon the agreement because it is a contract or sale of or concerning land within the meaning of the Instruments Act 1928,

sec. 128 (Statute of Frauds, sec. 4), and further that the alleged trust cannot be created because the declaration of trust is not manifested and proved by writing or by the husband's will (Property Law Act, see. 53 (Statute of Frauds, sec. 7)). These are questions upon which Ihave been unable to discover any definite authority which can be regarded as directly applicable to the present case. Horton v. Jones (1) is perhaps the case which is nearest in its facts, but in that case the promise which was sued upon was a promise to leave the
plaintiff by will a specified interest, namely, the interest which a son had under his deceased father's will. That interest consisted of an interest in land and the promise, therefore, at the time when it was made, clearly applied to an interest in land so as to fall within the Statute of Frauds. In the present case the promise by the husband was a promise to leave his property to certain persons by will, including such property as his wife might leave to him by her will, less, as my brother Dizon has explained in some detail in his judgment, such amount of that property as he might have bona fide
disposed of during his lifetime. i _ Although the Statute of Frauds has been in force for over 200 'years and has perhaps been more explained, or, as many would say, explained away, by judicial decisions than any other statute, this

[106]

affecting and possibly defeating testamentary dispositions of valuable property. The circumstances of the present case, however, invest - the story told on the part of the respondents with some probability. The testatrix had succeeded to a large amount of property in consequence of some predilection in her favour on the part of an uncle who might have spread his gifts more widely among the members of the family. Some difficulties had arisen in the adminis- tration of his estate which worried her and made it appear inexpedient to make her husband tenant for life under her will and bequeath her estate in remainder to the four respondents. The time had come when she considered that she ought to make a will. And it was natural that she should wish to be sure that the relatives of her late uncle and of herself would succeed to the estate which he had left to her. Witnesses deposed to a circumstantial account of discussions between the wife and one or other of the intended bene- ficiaries. They narrated how the wife definitely stated in his presence the terms of the arrangement made with the husband and how he assented to her statement. The evidence, if believed, could leave no doubt that the wife made her will upon the faith of assurances on the part of her husband that he would leave his will unrevoked should she die first and that he made his will as part of the arrangement under which she made hers. This evidence was corroborated by evidence, taken on commission, of statements made by the spouses while abroad. One of the respondents wrote letters which formed the basis of some criticism of his testimony. But, read as a whole, they do not substantially detract from its credibility. Gavan Duffy J. found that an agreement had been made, and I do not think that his finding can be set aside. He found, too, that the arrangement was not of a character leaving legal relations unaffected. So far as this is a question of fact, I think he was fully justified in taking the view that the wife meant to obtain from her husband a promise and meant that it should be communicated to the intended beneficiaries in order the better to ensure its fulfilment. I think the legal result was a contract between husband and wife. The contract bound him, I think, during her lifetime not to revoke his will without notice to her. If she died without altering her will, then he was bound after her death not to revoke his will at

At a glance

Court

Decision date

Before

Source

Judgment (173 paragraphs)

Parties