Albrow & Anor v Cunningham [2000] NSWSC 103

Albrow & Anor v Cunningham [2000] NSWSC 103

The handwritten instructions, the substantially corresponding wills, the formal execution of those wills before a solicitor, the reference to property, Mrs Albrow's age and ill-health, and the communication to Chris and Marlene that the home would be left to them supported the inference that Mrs Albrow and Mr Crowley agreed to mutual wills in 1991, each undertaking impliedly, if not expressly, that the survivor's will would not be revoked. The plaintiffs therefore succeeded on the mutual wills claim.

Jurisdiction
Australia
Judgment Date
25 February 2000
Procedural Posture
Equity Proceedings Concerning Alleged Mutual Wills and Alternative Family Provision Act 1982 Claim / Judgment After Hearing
Outcome
Plaintiffs succeeded; declarations were ordered in relation to the mutual wills claim, with costs of both parties to be paid out of the estate and the defendant's costs on an indemnity basis.
Legal Topics
['mutual Wills' 'irrevocability of Wills' 'constructive Trust' 'family Provision Act 1982 Provision' 'costs From Estate']
['equity' 'succession' 'family Provision'] ['mutual Wills' 'irrevocability of Wills' 'constructive Trust' 'family Provision Act 1982 Provision' 'costs From Estate']

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Procedural Posture

Equity Proceedings Concerning Alleged Mutual Wills and Alternative Family Provision Act 1982 Claim / Judgment After Hearing

Legal Issues

  1. 1 ['Whether Mrs Albrow and Mr Crowley entered into mutual wills in 1991 under which the survivor undertook not to revoke the will.' 'Whether the circumstances and evidence established an intention to create legally binding, irrevocable interests in favour of Chris and Marlene Albrow after the death of the survivor.' 'If mutual wills were not established, whether provision should be made for Chris and Marlene under the Family Provision Act, 1982.']

Ratio Decidendi

The handwritten instructions, the substantially corresponding wills, the formal execution of those wills before a solicitor, the reference to property, Mrs Albrow's age and ill-health, and the communication to Chris and Marlene that the home would be left to them supported the inference that Mrs Albrow and Mr Crowley agreed to mutual wills in 1991, each undertaking impliedly, if not expressly, that the survivor's will would not be revoked. The plaintiffs therefore succeeded on the mutual wills claim.

Court Disposition

Plaintiffs succeeded; declarations were ordered in relation to the mutual wills claim, with costs of both parties to be paid out of the estate and the defendant's costs on an indemnity basis.

Orders

  • ['Order in terms of declaration 1 as sought, substituting the words "devised and bequeathed" for the word "divided".' 'Declaration 2 should be made.' 'Leave reserved to apply for such incidental orders as may be required.' 'Costs of both parties to be taxed and paid out of the estate of the testator.' "The...