Osborne v Estate of Frederick Osborne and Daisy Osborne [2001] VSCA 228

5. The appellant's late mother (Winifred Osborne) died shortly after executing her will; in July 1985. She had, according to evidence given at the trial, been suffering for some time from "senile dementia", although his Honour was not prepared to conclude on the evidence before him that, at the time of executing her will, she lacked testamentary capacity. She died without revoking her last will and testament. It appears that her major - if not sole - asset was the interest which she held, as joint tenant with her husband, in their matrimonial home; Unit 1, 36 Belmont Avenue, North Glen Iris (Certificate of Title Vol. 9145 Fol.788). Upon her death, that interest passed by operation of law to her husband, Frederick Osborne. The issue before his Honour was as to the ownership, legal or equitable, of that unit and its contents.

8. The appellant alleged that, by reason of the agreement to make mutual wills, and in consequence of Winifred's compliance with that agreement until her death in July 1985, his late father (Frederick died in May 1996) became bound in equity to hold the unit and its contents as trustee for him and his brother Neil Osborne absolutely as tenants in common.

11. The appellant's claim was that his late father breached these trusts; first in June 1990 when - in contemplation of re-marriage - he made a new will revoking his former testamentary dispositions and gave a life interest in the unit to his intended wife, Daisy Osborne (the second defendant) and otherwise left his estate to his sons who survived him, and to the child or children of such son or sons who did not; and secondly on 13 February 1995 when the father made another will and executed a "deed of family arrangement" with Daisy, his then wife. By the latter document, the father agreed that, in consideration of its execution by Daisy, he would transfer his interest in the unit to her. For her part, Daisy agreed that she would, by her will, dispose of the interest thus created (plus the contents) in accordance with a schedule to the deed. The will, so the schedule to the deed specified, was to give her husband, Frederick, a right to reside in the unit and enjoy its contents during his life or until he no longer wished to exercise those rights; and upon "release" the unit and contents were to be sold with one half of the proceeds going to Neil Osborne and the balance (on terms) to each of three named grandsons of Frederick. On the same day, that is 13 February 1995, Daisy made a will in those terms. Frederick also, on that day, made a further will leaving the whole of his estate to his executors and trustees on terms that they would convert his estate into money and to pay one half of the proceeds to Neil and the balance in equal shares to the same three grandsons. The effect of these transactions was that the appellant's son Brett was a beneficiary under the wills of Frederick and Daisy; as were the sons of Neil. The appellant however is a beneficiary under neither will.

14. In the events which have happened, the appellant - in conformity with the allegations to which I have referred - claims that his step-mother Daisy, now the registered proprietor of the unit, holds it and its contents on trust for the appellant and his brother Neil. Before Harper, J., he claimed (inter alia) a declaration of the existence of the trust claimed; an order that the unit be sold and proceeds distributed and an order that Daisy vacate the unit - notwithstanding that she is aged 85 years. The appellant - in assertion of the interest in the unit which he claims - lodged a caveat in the Titles Office on 13 September 1995 purporting to prohibit any dealings with the unit. Accordingly the defendants before Harper, J. sought, by counterclaim against the appellant and the Registrar of Titles, an order for the removal and cancellation of the caveat.

17. The trial of the issues before Harper, J. took place in February 2000. Among the witnesses called was a Mr. McGrath, a solicitor, who had drawn the wills of the appellant's mother and father in 1985. Although he no longer had any files, he said that he was well aware of the concept of "mutual wills" and that, if the parties had intended to make such wills, he would have drawn them in an entirely different way. A doctor was called who confirmed that between 1981 and her death in 1985, the appellant's mother was, indeed, suffering from senile dementia. The appellant's brother Neil was called by the respondents. He has lived for many years in Canada and knew little about the events which were in issue. He did say, however, that his mother was suffering from "memory loss" between 1981 and 1985.

20. In a closely reasoned decision Harper, J. concluded that the wills made by the appellant's mother and father in 1985 were not, and not intended to be, mutual wills - and, in particular, he was not satisfied on the evidence that there was any agreement between the mother and father which imposed upon either of them a legal obligation not to revoke those wills during their respective lives; or indeed any obligation of a type which equity would enforce at the instance of their children. His Honour carefully reviewed the evidence, and the authorities relating to "mutual wills" - the locus classicus of which (at least in this country) is Birmingham v. Renfrew[1] and extracted from the authorities the following principles:

(a) that there is a need for caution in accepting proofs advanced in support of an agreement affecting and possibly defeating testamentary depositions of valuable property (Birmingham, supra, at 681-2 per Dixon, J.); and that those who undertake to establish such an agreement assume "a heavy burden of proof" because such agreements are "easy to allege after the parties to it have died and any court should be very careful in accepting the evidence of interested parties upon such a question". (Birmingham, supra, at 674-5 per Latham, C.J.).

(b) that the mere fact that husbands and wives make "corresponding wills in the sense that each will is naturally explained by the existence of the other ... is not sufficient to establish a binding agreement not to revoke [such wills]" (per Latham, C.J. in Birmingham, supra, at 674-5). I also myself would refer to Gray v. Perpetual Trustees Co. Pty. Ltd.[2] , Re Cleaver (deceased)[3] and In re Oldham[4].

26. His Honour concluded, on the evidence before him, that the appellant had failed to prove any agreement between the parents of the type which would give rise to the asserted trust. As he said:

"There is simply no evidence that either parent intended to prevent the other from ever, in any circumstances, revoking his or her will if the first to die left, at the time of his or her death, his or her will in the form it took on 24 March 1985 ... In my opinion [the appellant's] evidence came nowhere near establishing the contract pleaded by him."

His Honour further found on the evidence before him that each parent had a motive for revoking their former wills and executing the 1985 wills in the terms which they did. Apart from their natural desire to benefit their sons, that motive was founded upon a fear that death duties would be re-introduced and a belief that, if they were, their effect would be minimized if they left their respective estates to their children. As his Honour said "The evidence does not suggest that they then resolved never to alter their dispositions ... no matter how much their circumstances might change". His Honour dealt, seriatim, with various arguments advanced to him on behalf of the appellant arising from various circumstances occurring subsequent to the making of the wills between 1990 and 1995 and concluded that none of them established an agreement "not to revoke", and that each was open to a variety of competing inferences.

31. His Honour went on to say (even though it was unnecessary to do so) that, even if the appellant could prove the agreement which he asserted, he could not establish "his claim in equity". He concluded that there was nothing in the evidence which established any form of obligation, based on bad faith, arising in the father to leave his property to his sons or either of them. In other words, there was nothing in the evidence which suggested any form of promise made by the father to the mother, by reason of which the mother "was induced to act" in the way in which she did. His Honour was satisfied that the mother was content to dispose of her property in the manner which she did, and would have done so in any event. She had her own reasons for wishing to benefit the beneficiaries whom she named in her own will and the father had nothing to gain by offering such an inducement to her. His Honour expressed the view that the essence of the "constructive trust" enforceable in equity in the case of "mutual wills" depended upon proof of facts evidencing "bad faith" on the part of the survivor. He referred to In re Dale[5], but doubted the proposition raised in that case that the doctrine of "mutual wills" is not confined to cases where the surviving testator has benefited from the will of the other testator, but might extend to cases where the two testators have left their property to beneficiaries other than themselves. He noted that the decision of Morritt, J. in that case was given in respect of a "preliminary issue".

34. In accordance with the findings made, his Honour dismissed the appellant's claim, entered judgment for the respondents and, on the counterclaim, ordered removal of the caveat.

37. On this appeal, the appellant has challenged the correctness of his Honour's decision on a number of grounds. He is faced with a difficult task because his Honour's decision is clearly founded upon the facts derived from the evidence before him and, in respect of which, he had the advantage of seeing the witnesses and assessing their credibility - an advantage which this Court does not share[6]. Apart from the fact that the wills were drawn in identical terms and on the same day, the evidence upon which his Honour was asked to infer the existence of mutual wills with an implied term not to revoke without notice was meagre and speculative and, as it seems to me, based almost entirely upon reconstruction. The appellant's affidavit - which stood as his evidence in chief - referred to the fact that, in 1974, his mother and father had executed wills disposing of their property absolutely to each other, and to the children in the event of one pre-deceasing the other. It was these wills which they revoked in March 1985 upon the making of what the appellant asserted were mutual wills. The basis for that assertion was a replication of the "particulars" set out in the amended statement of claim. As his Honour noted, the affidavit and the particulars suggested that the "trigger" which caused the parents in 1985 to execute new wills was their concern about the re-introduction of death duties which might have an effect upon their estates. In cross-examination the appellant said that his parents had never talked in terms of making "mutual wills". He said that the term "mutual will" had arisen because he had "looked at what they had done and, on reading the law, ha[d] concluded that what they did constitutes in legal terms, mutual wills ...". He had come to this conclusion in 1994, having obtained a law degree from Bond University in 1992. He said he and his partner (an associate professor of law at the Deakin University) had "bandied it around and eventually come up with a conclusion that what mum and dad did constituted mutual wills". He said he could not recall any discussion about "non-revocation" but "its only a perception, but I'm sure my mother went to her grave ... knowing that my father would continue on down the track of the agreement they had made, and he did until such time as he was to re-marry". The solicitor, Peter McGrath, who drew the 1985 wills said that he had no present recollection of the circumstances surrounding the making of the wills, but it was his practice, if being asked to draw mutual wills, to draw an agreement by which the parties "would bind them not to change the wills in the event of one of them dying". There was no evidence of such an agreement being signed in this case and, as he said, if that had been intended "I would have done it in an entirely different way" which he explained was by severing the joint tenancy and giving a life interest to each tenant in common.

40. Counsel for the appellant made a number of criticisms of his Honour's reasons for judgment. In the first place it was said that his Honour had imposed too high an onus of proof when he said that, in order to establish his case, the appellant needed to satisfy a "heavy burden of proof". It was contended that the only standard which the appellant had to satisfy was the civil one of proof "on the balance of probabilities". This argument, I think, does not do justice to the full context of his Honour's remarks. The whole of his judgment makes it clear that his Honour did not regard the appropriate standard as other than the civil standard. Rather his Honour was reflecting on the strength of the evidence required in a case of this sort where the plaintiff was asserting that the testator had, because of his prior agreement, lost his freedom to dispose of his assets in the manner which he chose. It is not a novel concept that there are some civil cases where the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved[7]. Thus in cases of the instant type, courts have constantly cautioned, in various terms, that those who carry the burden of proving an agreement between deceased testators that they will not revoke their wills "assume a heavy burden"[8]; or can only establish it "by clear and satisfactory evidence"[9]. Indeed, this Court recently said that those "seeking to establish an oral contract after the death of the other party to the contract" bear a "substantial burden"[10]. A fortiori where a person is seeking to prove such an agreement between two testators who are deceased. To my mind, his Honour was doing no more than giving effect to those principles and stating that, in a case where it is being alleged that deceased persons have bound themselves to dispose of their estates in accordance with "mutual wills", he should not reach a state of satisfaction unless there was clear and satisfactory evidence that such an agreement had been made. In this case, his Honour was of the view that the evidence before him was anything but clear and satisfactory; and in my view he was entitled to come to that conclusion.

43. It was the appellant's further submission that the judge was in error in failing to look at what was called the "matrix of facts" in combination and in considering them in isolation. Thus it was put that if his Honour had had regard to the combined force of the facts that the testator and testatrix had revoked their 1974 wills on the same day, had executed new wills in favour of the children in identical terms simultaneously, the appellant's evidence of conversations between his mother and father in March 1985 and statements made by the father between 1990 and 1995, he would have been compelled to the conclusion that there was a strong inference that the appellant's parents had made an agreement to make mutual wills including, by implication, a term that one would not revoke the will without notice to the other. It was further submitted that the reasons of his Honour demonstrated that he had failed to take into account relevant facts including the age of the testator and testatrix, their agreement to execute the new wills and their terms. In its essence it was the submission of the appellant that the combined circumstances proved by the evidence created a "strong circumstantial case" that the appellant's mother and father had made, and had intended to make, "mutual wills", but that his Honour had deprived himself of the capacity to discern the strength of the case by directing his attention to the facts in isolation rather than in combination.

46. These submissions do not, as I see them, accurately reflect his Honour's reasons for decision. Having set out the facts, the relevant law, and the need for "clear and satisfactory evidence" of an implied agreement on the part of the testator that he would not revoke his 1985 will, his Honour concluded:

"The plaintiff has failed to prove the contract upon which his case depends. There is simply no evidence that either parent intended to prevent the other from ever ... revoking his or her will if the first to die left ... his or her will in the form which it took on 24 March 1985. ... In my opinion [the plaintiff's] evidence came nowhere near establishing the contract which is pleaded by paragraph 4 (b) of his second further amended statement of claim."

In paragraph 4 (b) of that statement of claim, the appellant had pleaded that:

"On and prior to 24 March 1985, it was agreed between Winifred Alice Osborne and the deceased that: (b) each would make mutual wills which wills would not be revoked during the life of the survivor."

"The [parents] had a motive, apart from their natural desire that their property pass to their sons, for adopting this position. They feared the re-introduction of death duties."

These findings were, as it seems to me, quite consistent with the appellant's own evidence. Although, in that evidence, he asserted that, in or about March 1985, and before the time when his parents executed their wills on 24 March, he had discussed with his parents "on a number of occasions" the proposed changes to their wills, he could not specifically recall precisely when or where those discussions took place, nor could he recall the content of the discussions except that the "general gist" was that they "wanted their property to transmit to my brother and I equally". He went on:

"However, these discussions only arose and were only triggered by them suddenly discovering, by whatever was in the newspapers or on TV, that the government may re-introduce death duties and they were very concerned that what they wanted would not occur if such happened ...".

"That is what triggered the beginning of the discussions. Until then, there were no discussions, that is what triggered it ...".

58. His Honour's conclusions, to which I have referred, were based upon his view of the whole of the evidence before him. It was a view which was expressed on the facts which he had earlier addressed incorporating, as they did, the appellant's own broadly expressed recollection of statements made by his parents at or about the time they made their wills. It was also a view which, as his Honour said, took account of the proposition - established by the authorities - that the fact of making identical wills will not, of itself, establish an implied agreement not to revoke[11]. This is because, as his Honour also noted, many husbands and wives make corresponding wills "by agreement" without binding themselves not to revoke them. Such wills are infinitely more likely to be the product of mutual trust and moral responsibility than a binding obligation not to revoke.

61. It cannot, in my view, be sensibly contended that, in reaching the conclusions to which I have referred in the preceding paragraphs, the judge was considering the evidential circumstances in isolation to the exclusion of their combined impact. After all, he had the benefit of submissions by both counsel in which they had urged him to do just that. Unlike cases such as Birmingham & Ors. v. Renfrew (supra), Re Cleaver (supra) and Barns v. Barns & Anor (supra), his Honour was faced with a case where there was no clear and unequivocal independent evidence upon which a conclusion of an intention in the testator and testatrix to bind themselves not to revoke their wills could be safely inferred. It is true that, in the course of his reasons, his Honour went on to consider the effect of statements, in correspondence and otherwise, subsequent to the making of the wills. This, no doubt, was because the appellant, through his counsel, had urged the judge in his submissions (which I have read) to take specific account of those particular circumstances. The circumstances upon which the appellant relied occurred on various dates between 1990 and 1995 and, in response to the appellant's submissions, his Honour dealt with them and concluded that none of them could be construed as warranting the inference for which the appellant was contending. Having regard to the context of his Honour's reasons, it does not seem to me that he was looking at the evidence in a "compartmental" form. Rather, the framework of his Honour's reasoning suggests to me that he was not satisfied, upon the whole of the evidence, that Frederick and Winifred had agreed not to revoke their 1985 wills; nor was he satisfied that there was anything in the circumstances, specifically relied upon by the appellant, occurring between 1990 and 1995 - whether taken individually or in combination - which would lead him to a contrary inference. Having looked at the matters so relied upon, his Honour was, in my view, perfectly correct in his conclusion. Looked at in their entirety, those circumstances reveal something which is all too distressingly familiar; namely a son, more concerned with his material interests than his father's welfare, urging his father to do little or nothing for his new wife "in honour of mum's memory"; and a father, initially making concessions to keep the peace, finally rejecting the son altogether. These were not views which his Honour expressed in terms, but they seem to me to be implicit in his final statement about the evidence of the events between 1990 and 1995:

"These facts do nothing for the plaintiff's case. They only prove that, by February 1995, Frederick had no wish to leave anything to his younger son. They do not prove that the plaintiff's father once entered into an agreement which, in the events which followed, bound him to leave his property to Neil and [the appellant]."

Far from suggesting that his Honour was looking at circumstances in isolation, they suggest the contrary. I would, accordingly, reject counsel's submissions in this regard.

66. The next criticism made of his Honour's reasons was founded upon a submission that his Honour had misled himself, and imposed too high a "ceiling" for the appellant, by requiring the appellant to satisfy him that the testator and testatrix had entered into an "enforceable contract" rather than an "agreement or understanding" enforceable in equity. It was put that mutual wills are enforced in equity and that equity merely requires a definite agreement, arrangement or understanding between the testators. In particular, attention was drawn to passages in his Honour's judgment in which he had said:

"The plaintiff must prove a contract, to which each of his parents was a party, that each would make a will which, during their joint lives would not be revoked without notice to the other; and after the death of the first to die, would not be revoked by the survivor. It is true that the plaintiff sues not on a contract but upon a trust. But "without such a definite agreement there can be no more a trust in equity than a right to damages at law". (Gray v. Perpetual Trustee Co. Ltd., supra.)

In making this statement, his Honour was drawing a contrast between what the plaintiff was required to establish, and what he had termed a "loose arrangement" or "honourable engagement"[12]. His Honour, as I have already said, went on to conclude that, in his opinion, the evidence "came nowhere near establishing the contract which is pleaded". The appellant's counsel, nevertheless, contended that it was not necessary for his client to prove a "contract" and referred to such authorities as In re Gardner[13] where the court spoke of "taking the property in accordance with and upon an undertaking to abide by the wishes of the testatrix" and R. v. Cleaver (supra at 1024) where Nourse, J. spoke of "an agreement or understanding" imposing "a legally binding obligation".

71. There is, in my opinion, nothing in this point. His Honour well understood, as his reasons demonstrate, that what the appellant had to establish was the existence of a legal obligation of a nature which equity would enforce. Whether one calls it a "contract", "an agreement", "an undertaking" or "legally enforceable promise" is merely a matter of nomenclature. As Dixon, J. said in Birmingham v. Renfrew (supra at 682-3):

"I think the legal result was a contract between husband and wife. The contract bound him, I think, during her life-time 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 all. She, on her part, afforded the consideration for his promise by making her will. ... But the agreement really assumes that neither party will alter his or her will without the knowledge of the other. It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its disposition. It operates to impose upon the survivor an obligation regarded as specifically enforceable."

Likewise, in Bigg v. Queensland Trustees Ltd.[14], McPherson, J. said:

"Logically, the first question to be decided in a case like this is whether a contract to make and not to revoke mutual wills has been established. ... The substantive question is whether there was also a contract not to revoke. In some of the judgments this is a matter that is treated as subject to strict proof of an express contract to that effect; in others, that it may be implied or inferred from the fact that the parties agreed to execute mutual or corresponding wills."

Again, in Aslan v. Kopf[15] and Baird and Anor. v. Smee[16], the Court of Appeal of New South Wales variously spoke of the "need to prove a legally binding contract"[17] and "... a testator may enter into a binding contract not to revoke a will ..."[18]. It is, of course, true that any such contract cannot defeat the operation of the Wills Act 1958[19] nor, perhaps, be defeated by the operation of the Statute of Frauds[20]. Nevertheless, it is apparent from the authorities that equity will not intervene unless the plaintiff can establish, upon clear evidence, that a testator has bound himself to an obligation (whether one calls it contract, agreement, promise or otherwise) not to revoke his will, and in such terms as to render it enforceable in equity. There is nothing in the reasons of his Honour which suggests to me that he has misdirected himself in this regard.

78. The other matters relied upon by the appellant were inter-related. The appellant contended that his Honour had erroneously imposed upon the appellant the "double burden" of satisfying him first that there was an underlying contract not to revoke his will; and secondly that he had established a claim in equity by demonstrating that Frederick had induced his wife "to do something which otherwise she would not have done"; namely that he had practised a fraud upon her in 1985. Further, it was contended that his Honour was in error in suggesting that the requisite fraud could not be proved unless the testator and testatrix had made wills disposing of their respective estates (or some portion of it) in favour of the other. In this latter respect, his Honour said that he found Morritt, J's analysis of the authorities in Re Dale (supra) "unconvincing", although, as he said, "in the

circumstances ... I need not take the matter further". However, neither of these matters was essential to his Honour's decision because he had already disposed of the appellant's case on the basis that the evidence fell "far short of" establishing that the testator and testatrix had made an agreement not to revoke their 1985 wills of a type which created an obligation enforceable in equity. His Honour introduced the matters, now relied upon by the appellant, with the words:

"Even were [the appellant] to prove the contract upon which his case depends ... [he] would, in my opinion, ultimately fail."

It was only when the judge turned to these "alternative" bases for rejecting the appellant's claim that he enunciated the propositions which the appellant has challenged in this Court. Those propositions do not, as I have said, impinge upon the reasons which he had already given for dismissing the claim. It should not, however, be thought that I agree with the propositions in the form in which his Honour has stated them. It is sufficient for me to say that I have read the draft reasons for judgment which have been given by Buchanan, J.A. in this appeal, and that I agree with the reasons given by his Honour in paragraphs [23], [24] and [25] of his judgment.

84. For the reasons given, I would dismiss the appeal.

89. I agree with Winneke, P. that the appeal should be dismissed for the reasons he has stated.

92. I wish to add only some observations as to the significance of a survivor of two persons who have made identical wills taking an absolute interest or some other benefit in the estate of the first to die or taking no interest in the estate.

95. As an alternative basis for his decision the trial judge concluded that there was no fraud sufficient to found a trust if the survivor did not benefit under the will

of the first testator, notwithstanding the existence of an agreement or understanding to make mutual wills, and doubted the decision in In re Dale[21] that the doctrine of mutual wills extended to cases in which the testators left the whole of their estates to beneficiaries other than themselves.

99. The fraud in equity lies in the departure by the survivor from the agreement or understanding that caused the first testator to act in reliance upon the survivor abiding by the agreement or understanding. In a particular case it may be easier to infer the requisite agreement or understanding was made where the parties have made wills directly benefiting each other. If both estates have been left to others, it may be more difficult to infer that each party was induced by the other's promise to act as he or she did. On the other hand, if an agreement or understanding does exist, I do not think that the conclusion that the survivor perpetrated equitable fraud depends upon whether he or she was a beneficiary under the first will. The essence of the fraud in equity is the betrayal of the basis upon which the parties reached an agreement or understanding and on the faith of which the first testator acted[22]. Equitable fraud provides the rationale for equity to intervene when an agreement or understanding that there be mutual wills is breached[23].

102. I would respectfully agree with the conclusion of Morritt, J. in In re Dale. His Lordship said:

"As all the cases show, the doctrine [of mutual wills] applies when the second testator benefits under the will of the first testator. But I am unable to see why it should be any the less a fraud on the first testator if the agreement was that each testator should leave his or her property to particular beneficiaries, for example their children, rather than to each other. It should be assumed that they had good reason for doing so and in any event that is what the parties bargained for. In each case there is the binding contract. In each case it has been performed by the first testator on the faith of the promise of the second testator and in each case the second testator would have deceived the first testator to the detriment of the first testator if he, the second testator, were permitted to go back on his agreement. I see no reason why the doctrine should be confined to cases where the second testator benefits when the aim of the principle is to prevent the first testator from being defrauded. A fraud on the first testator will include cases where the second testator benefits, but I see no reason why the principle should be confined to such cases."[24]

106. Counsel for the appellant relied upon the distinction between the surviving testator taking an absolute interest in the estate of the other testator and taking no interest or less than an absolute interest for the purpose of contending that the trial judge erred in relying upon the dictum of Latham, C.J. in Birmingham v. Renfrew[25] that those who undertook to establish an agreement for mutual wills "assume a heavy burden". It was submitted that a heavy burden was only present when the survivor was left an absolute interest in the estate of the other, because conferring such an interest was prima facie inconsistent with an obligation to hold that property for another under an agreement for mutual wills.

109. An agreement for mutual wills is to be proved on the balance of probabilities, whether or not the survivor takes an absolute interest in the estate of the first to die.[26] The nature of the case, however, has a bearing upon whether the test of a preponderance of probabilities has been met. As Dixon, J. said in Briginshaw v. Briginshaw[27]:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

113. 28 In Birmingham v. Renfrew an aspect of the case which bore upon the attainment of satisfaction on the balance of probabilities was the inconsistency between conferring an absolute estate and limiting the beneficiary's ability to deal with that estate[28]. In the present case the question whether the burden of proof was satisfied was affected by the improbability of the parties accepting an inability to adapt the disposition of their estates to any changes that might occur during the lifetime of the survivor.

116. It is hardly surprising that a husband and wife should make wills leaving their estates to their children. Nor is it surprising that they should employ the same solicitor to draw the wills and execute them on the same day. What is relatively rare is for those commonplace events to be accompanied by an agreement that the surviving party will not thereafter alter his or her will no matter what the future may bring. In certain cases the form taken by identical wills may seem inexplicable unless an agreement for mutual wills is postulated. That is not the position in this case. Further, the task of the proponent of an agreement for mutual wills is affected by the fact that the parties to the agreement cannot give evidence. In my opinion the trial judge's reference to the statements of Latham, C.J. and Dixon, J. in Birmingham v. Renfrew as to the standard of proof did not indicate that his Honour was imposing a test other than the balance of probabilities, but only that he was conscious of the difficulties of satisfying that test in the circumstances before him.

121. I agree that this appeal should be dismissed for the reasons given by Winneke, P. I also agree with the views expressed by Buchanan, J.A. with respect to what was referred to as the "alternative basis" for his Honour's decision.

[1] [1937] HCA 52; (1937) 57 C.L.R. 666.

[2] [1928] A.C. 391 at 399-400 per Viscount Haldane.

[3] [1981] 2 All.E.R. 1018 at 1022 per Nourse, J.

[4] [1925] Ch.75 at 87-8 per Astbury, J.

[6] cf. Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 C.L.R. 167; Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472. In this case, the reliability and truthfulness of the appellant was very much in issue.

[7] Neat Holdings Pty. Ltd. v. Karajan Holdings Pty. Ltd. [1992] HCA 66; (1992) 67 A.L.J.R. 170 at 171; Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 at 362.

[8] Birmingham v. Renfrew, supra, at 674 per Latham, C.J.

[9] Birmingham, supra, at 681 per Dixon, J.; Re Cleaver, supra, at 1024 per Nourse, J.; Barns v. Barns & Ors. [2001] SASC 303 at [73].

[10] Sykes v. Equity Trustees Executors & Agency Co. Ltd. [1999] VSCA 199 at [11] per Buchanan, J.A.

[11] cf. Baird & Anor. v. Smee [2000] N.S.W.C.A. 253 at [27] per Handley, J.A.; Gray v. Perpetual Trustee Co. Ltd. [1928] A.C. 391 at 400 per Viscount Haldane.

[12] cf. Lord Walpole v. Lord Orford (1797) Ch. 3 Vesey 402 at 419.

[13] [1920] Ch. 523 at 529 per Lord Sterndale.

[14] [1990] 2 Qd.R. 11 at 13-14.

[15] Unreported, Court of Appeal (NSW) 16 May 1995.

[16] [2000] N.S.W.C.A. 253.

[17] Smee v. Baird, supra, at [24] and [26] per Handley, J.A.

[18] Aslan, supra, at 5, per Gleeson, C.J.

[19] In the sense that a further will, made by a person who has bound himself not to revoke his previous will, is a valid testamentary disposition which must be admitted to probate (cf. Birmingham v. Renfrew, supra, at 682; Barns v. Barns & Anor, supra, at [77].

[20] cf. Birmingham v. Renfrew, supra, per Latham, C.J. at 677 ff.; per Dixon, J. at 690-1.

[21] [1994] Ch. 31.

[22] See McCormick v. Grogan (1869) L.R. 4HL 82 at 97; Schaefer v. Schuhmann [1972] A.C. 572 at 599.

[23] See Dufour v. Periera (1789) 2 Harg. Jurid. Arg. at 307, 310; Walpole v. Orford [1797] EngR 489; (1797) 3 Ves. 402; Birmingham v. Renfrew [1937] HCA 52; (1937) 57 C.L.R. 666 at 670, 683, 685, 688 and 689; Bigg v. Queensland Trustees Ltd. [1990] 2 Qd.R. 11 at 13.

[24] Above at 49. See also Re Gardner [1920] 2 Ch. 523 at 528-529 per Lord Sterndale, M.R.

[26] Re Cleaver [1981] 1 W.L.R. 939 at 947-8 per Nourse, J.

[27] [1938] HCA 34; (1938) 60 C.L.R. 336 at 361-2.

[28] Birmingham v. Renfrew at 674 per Latham, C.J. See also Re Oldham [1925] 1 Ch. 75 at 87-88 per Astbury, J.; Baird v. Smee [2000] N.S.W.C.A. 253.