Osborne v Estate of Frederick Osborne and Daisy Osborne

[2001] VSCA 228

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Equity
2. › Constructive trusts
3. › Mutual wills
4. › Agreement not to revoke
5. › Whether clear and satisfactory evidence of agreement between testators established
6. › Standard of proof
1. Equity
2. › Constructive trusts
3. › Mutual wills
4. › Equitable fraud
5. › Whether doctrine confined to cases where surviving testator benefits under will of first to die
6. › Whether fraud extends to cases where both testators leave estates to third-party beneficiaries
1. Evidence
2. › Standard of proof
3. › Civil standard
4. › [name withheld] principle
5. › Proof of agreement between deceased persons
6. › Whether 'heavy burden' imposes standard other than balance of probabilities
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Advantage of seeing witnesses
5. › Whether appellate court should disturb factual findings

Quick Take

An agreement for mutual wills must be proved on the balance of probabilities, but the nature of the allegation — that deceased persons bound themselves not to revoke their wills — requires clear and satisfactory evidence, consistent with the [name withheld] principle. The making of identical wills on the same day, even by the same solicitor, is insufficient to establish such an agreement. The doctrine of mutual wills is not confined to cases where the surviving testator benefits under the will of the first to die; the equitable fraud lies in the betrayal of the agreement, not in the receipt of a benefit.