[2009] UKFTT 138 (TC)

								TC00106

Appeal number SC/3148-9/2008

Inheritance tax - death - estate passing on death - was there settled property derived from deceased’s husband who died in 1969 and estate duty was paid - questions of secret trust and mutual wills  - transitional relief from inheritance tax - Inheritance Tax Act 1984 Schedule 6, paragraph 2

FIRST-TIER TRIBUNAL
TAX

	PHILIPPA JUNE DAVIES & ANGELA DAWN RIPPON	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS (Inheritance Tax)	Respondents

				TRIBUNAL: 	JUDITH POWELL (Judge)

Sitting in public in London on 24 February 2009

Mr J Davies FCA for the Appellant

Colin Ryder instructed by the General Counsel and Solicitor to HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2009

DECISION

Mrs Rhona Joyce Goodman, the deceased, died on 19 December 2006 and her estate was valued at just over £164,000.  She owned the residue of a 199 year lease of the first floor flat in which she lived and a garage which together were valued at £245,000.  Most of the rest of her estate was represented by stocks and shares, premium bonds, National Savings and deposits at banks and building societies.  The deceased’s husband had died in 1969 and estate duty was paid on his death.  HMRC determined that the whole of the value of the deceased’s estate was chargeable to inheritance tax.  The Appellants appealed contending that a part of the estate should be left out of account because it was settled property derived from her late husband’s estate arising as a result of a trust of that property and that as estate duty had been paid in respect of that property in connection with his death it qualified for relief from inheritance tax as a result of Inheritance Tax Act 1984, Schedule 6, paragraph 2.  HMRC contended that there was no evidence to show that the property was settled property and as a result the value of the property should not be left out of account for the purposes of inheritance tax payable as a result of the deceased’s death.
Held - whilst there was evidence that the deceased felt that she should leave property derived from her husband to their two daughters there was no evidence that she was bound by a trust to do so.  The evidence revealed that the deceased had an unsurprising determination to benefit her two daughters but this did not arise from a legally enforceable duty imposed upon her.  It followed that there was no settled property derived from the deceased’s late husband; her estate consisted entirely of property to which she was absolutely entitled and the appeal would therefore be dismissed.
Cases referred to in the decision
McCormack -v- Grogan (1869) LR 4HL 82
Re Snowden (decd) [1979] Ch. 528c
Kasperbauer -v- Griffiths [2002] WTLR
Ottaway -v- Norman [1972] Ch. 698
Blackwell -v- Blackwell [1929] HL 318
Re Cleaver [1981] 2 All ER 1018

Mr J Davies FCA, the husband of the First Appellant, represented both Appellants.
Colin Ryder, Assistant Director of the Capital Taxes Office for HMRC.
May 2009.  The Following decision was released.
	THE APPEAL
1		Mrs Philippa Davies and Mrs Angela Rippon are the executrices of the Will of Mrs Rhona Joyce Goodman, the deceased, who died on 19 December 2006.  They are also her two daughters and her only children.  Mrs Philippa Davies and Mrs Angela Rippon are the Appellants in the appeal and each of them appeals against a notice of determination dated 7 April 2008 in the following form: 
	  The Commissioners of her Majesty’s Revenue & Customs have determined 	  in relation to 
1	the deemed transfer for inheritance tax purposes on the death of Rhona Joyce Goodman (the deceased) on 19 December 2006
2	the Will of Geoffrey William Frederick Goodman dated 3 September 1965 who died on 18 February 1969
in ascertaining the deceased’s estate for the purposes of s. 4(1) of the Inheritance Tax Act 1984 no part of the estate of the deceased is to be left out of account in accordance with Schedule 6, paragraph 2 of that Act.   
	A SUMMARY OF THE LEGISLATION
2		Section 1 of the Inheritance Tax Act 1984 (“the 1984 Act”) provides that tax is charged on the value transferred by a chargeable transfer.  Section 4 provides that, on the death of any person, tax shall be charged as if immediately before his death, he had made a transfer of value and the value transferred had been equal to the value of his estate immediately before his death.  Section 5 provides that a person’s estate is the aggregate of all the property to which he is beneficially entitled other than excluded property.  In this case if the deceased had an interest in possession in settled property deriving from her late husband’s estate she would be treated as beneficially entitled to it as a result of the provisions of s. 49 of the 1984 Act and so the value of the property would have formed a part of her estate.  When estate duty was abolished and capital transfer tax (now inheritance tax) was introduced there were some transitional provisions dealing with property that had been subject to estate duty in the former regime.  If the transitional provisions of Schedule 6, paragraph 2 apply to any property its value is left out of account for the purposes of determining the value of the estate of a person for inheritance tax purposes.  Schedule 6, paragraph 2 provides that in determining the value of the estate, immediately before his death, if a person whose spouse (or former spouse) died before 13 November 1974, there should be left out of account the value of any property which, if estate duty were chargeable on the later death would be excluded from the charge by s. 5(2) of the Finance Act 1894 (relief on death of surviving spouse).
Section 5(2) of the Finance Act 1894 provides that if estate duty has already been paid in respect of any settled property since the date of the settlement,  estate duty shall not be payable in respect of it until the death of a person who was at the time of his death, or had been at any time during the continuance of the settlement, competent to dispose of such property and the term settlement was (as respects a death occurring before 15 April 1969) defined in s. 22(1)(i) as meaning any instrument, whether relating to real property or personal property, which is a settlement within the meaning of s. 2 of the Settled Land Act 1882 or if it is related to real property, would be a settlement within the meaning of the section and includes a settlement effected by a parol Trust.  Although the general relief from payment of estate duty given by s. (2) and s. 5 of the Finance Act 1894 was abolished by the Finance Act 1914, the proviso to s. 14 preserved it  where estate duty was paid upon the death of one of the parties to a marriage so far as respects payment of estate duty on the death of the other party to the marriage.
3		Thus the scheme of the legislation is that by way of exception to the general rule which imposes a charge to inheritance tax on the value of a person’s estate immediately before his death, there is left out of account property which is settled property on which estate duty was paid as a result of the death of the person’s spouse provided that the person in question was not competent to dispose of the property at the time of his death.
	THE ISSUES
4		The Appellants argued that a part of the deceased’s estate did qualify to be left out of account as a result of the transitional provisions in Schedule 6, paragraph 2 of the 1984 Act.  They say that a part of the deceased’s estate was settled property derived from her late husband who died in 1969 and that estate duty was paid on the property as settled property in respect of his death and that the property was settled property as a result of a trust between the deceased and her late husband.  They say the terms of the trust were that the first to die would leave his or her estate to the survivor on the understanding that after the death of the first spouse that estate would be left on the death of the second spouse to their two daughters.
The Revenue say there is no evidence to support that assertion and that whilst the deceased’s conduct in relation to assets derived from her late husband may be consistent with the existence of a secret trust, it was equally consistent with the existence of a non-binding moral obligation or a desire on the deceased’s part to ensure that her children were not deprived of property which she considered to be their inheritance.  The Revenue says that if their argument (that there is no trust) is incorrect and, whilst they accept that it is likely that estate duty would have been paid in respect of all the property comprised in the estate of the deceased’s late husband, it  is a matter of evidence as to the extent of that relief.
5		Thus the issues for determination in the appeal were
1	whether there was property that the deceased derived from her late husband which was settled property as a result of constructive trust arising as a result of mutual wills or as a result of a secret trust between them which continued until the death of the deceased and, if so;
2	the nature of that property insofar as it formed part of the estate of the deceased immediately before she died.
	THE EVIDENCE
6		There was an agreed statement of facts and a witness statement by Mrs Philippa June Davies who also gave oral evidence.  A bundle of documents was produced by the Appellants and also by the Revenue and the bundles contained copies of correspondence between the Revenue and the Appellants.
	THE FACTS
7		From the evidence before me I find the following facts:
	The deceased and her late husband
The deceased grew up in Chislehurst and had a happy family life.  Her husband, a journalist, was a popular man.
8		The deceased and her late husband were married in 1942 and her late husband served with the RAF as a Squadron Leader based in Washington in the United States of America.   During this period the deceased and (after her birth) her daughter, lived in Scotland and when hostilities ceased the deceased and her late husband rented a property (Rosemount Cottage) in Chislehurst which they eventually purchased in 1952.  They enjoyed a happy family life and had a group of friends.  The deceased had no employment outside the home; her late husband worked as a journalist with the Evening Star until he was made redundant in 1960 when he was appointed press officer by BICC, whilst also having a weekend appointment with the Sunday Times.  The deceased inherited some assets on the death of her parents in 1944.  On 26 April 1965 the deceased executed a Will in favour of her husband (although providing for £500 legacies for each of their daughters) and on 3 September 1965 he executed a Will in similar form in her favour (but with no legacies to the daughters) in each case with the proviso that if the spouse failed to survive by 28 days the property would pass to the couples’ two children, Angela and Philippa, who are the Appellants.  There were no other children and by 1965 Angela was a school teacher and was married, whilst Philippa had commenced training as a physiotherapist at Guy’s Hospital in London.  Philippa married Mr Davies in 1967.  At Christmas 1968 the deceased’s husband became unwell and was admitted to Guy’s Hospital for exploratory surgery but was found to have terminal cancer and died at home shortly afterwards in February 1969.  Prior to this illness he had enjoyed good health.  Under the terms of his 3 September 1965 Will, the deceased was his sole executor and, upon her survival for 28 days after his death, inherited his estate.
	After the death of the deceased’s late husband
9		The deceased made a new Will shortly after the death of her late husband and before probate of his estate was granted to her on 21 May 1969.  This Will was dated 9 May 1969 and her two daughters were appointed as executrices and principal beneficiaries.  After probate of her late husband’s Will was granted, the deceased sold Rosemount Cottage and used a part of the proceeds to buy another property at 15 Abinger Close and; probably invested the entire balance of the proceeds of sale with Abbey National and Huddersfield Building Societies.  
10	The exact sale price of Rosemount Cottage is not known but is thought to have been around £14,000 and the purchase price of Abinger Close is also unknown but thought to be in the region of £4,000.  The deceased had, for many years, been a friend of a Mr. Raymond Charles Crossley Dodd (Mr Dodd) who was in many ways similar to her late husband and by the time the deceased was widowed he was divorced and had two sons by his marriage.  Mr Dodd lived with his father in Bromley after his divorce, was a director of a firm of Management Consultants and also had a pension due to his war injuries.  In 1978 the deceased and Mr. Dodd became engaged and in 1982 he moved into 15 Abinger Close to live with the deceased.  Although he suffered from a progressive form of Parkinson’s disease he was still able to work and drive a car at that stage.
11	On 6 December 1978 the deceased made a new Will.  The purpose of the Will was to protect against any claims that might be made as a result of living with or being married to Mr Dodd and at the same time a statement was drafted apparently with the intention of protection her assets from Mr. Dodd in the event of her death.  The draft statement (which was drafted to the basis that the deceased and Mr. Dodd would both sign it) made it clear that the deceased intended to leave her estate to her daughters after making a cash legacy to Mr Dodd.  This statement does not appear to have been completed and signed.
12	In 1984, the deceased sold 15 Abinger Close and bought a more expensive property in Chislehurst at 10 Hollington Close.  She had to contribute £6,420 from her own resources to fund the purchase (a flat).  This property was nearer to their friends and Mr Dodd found it easer to live in a flat.  Its upkeep, which was more expensive that that of Abinger Close was shared between the deceased and Mr Dodd.  On 9 May 1989 the deceased and Mr Dodd executed a declaration that 10 Hollington Close belonged only to the deceased.  This declaration made it clear that although Mr Dodd had paid for some alterations to the flat he had not acquired any property rights.
13	Mr. Dodd died sometime in 1998 or 1999 having moved him into a nursing home.  The deceased inherited assets worth about £100,000 from him.
14	Although they became engaged in 1978, the deceased and Mr. Dodd never married.  She had always been insistent that the proceeds of Rosemount Cottage should belong to Mrs. Davies and her sister and this influenced her relationship with Mr. Dodd and caused her to consult a solicitor about protecting her daughters’ interest when they became engaged.  Another worry that the deceased had for many years was that she would have insufficient funds to maintain the property.  This caused her to save out of her income whenever she was able to do and she did not spend capital.  From 1997 onwards the deceased passed control of her assets to her daughters.  On 18 April 1997 she authorised Barclays to permit her daughters access to her securities and dead box held by the bank.  On 24 November 1998, she executed an Enduring Power of Attorney in their favour which  was signed by Angela on 5 December 1998 and by Philippa on 8 December 1998 and they became progressively involved in managing her affairs in the period up to her death on 19 September 2006 although the deceased remained involved as well.  Her fears that she would have insufficient money to live on in the later years provide to be groundless; she had no need of nursing care and died after a short illness.
	After the deceased died
15	The deceased kept her paper work in “some sort” of order and Mrs. Davies described her as looking after her affairs well “in a domestic way”.  She had reduced her late husband’s paperwork over the years and by the time she died papers belonging to him were sufficiently few to fit into a brief case.  Each time the deceased moved she dealt with the practical arrangements herself and neither of her daughters were involved in sorting through paperwork.  The deceased left a large volume of her own correspondence and papers.  These included the letters relating to her late husband’s estate with a letter confirming that estate duty had been  part of his death and also the sale of Rosemount Cottage and 15 Abinger Close.  Mrs Davies subsequently applied for and obtained a copy of her father’s Will and probate.
	The estates of the deceased’s her late husband and of the deceased
16	There is comparatively little evidence to show what assets belonged to the deceased’s late husband at the date of his death.  The grant of probate shows that the gross value of his free estate amount to some £5,186 and a letter from the valuation office of the Inland Revenue dated 28 August 1969 was produced and the purpose of this letter was to request  permission to inspect Rosemount Cottage for valuation purposes in connection with his estate and supports the view the deceased’s late husband had an interest in the property.  He held BP shares in his own name.  A letter also produced and written to the deceased by the solicitor dealing with the estate acknowledged receipt of a cheque for payment of estate duty, mentioned two Australian Mutual policies and bank accounts at Martin’s Bank, Chislehurst and Barclays Bank Rushey Green, but there is no evidence of the value of these and it seems that the proceeds of the policies were used to repay a loan secured on Rosemount Cottage.  The extent of the interest to the deceased’s late husband in Rosemont Cottage is unclear and it is relevant that property was sold in November 1969 for about £14,000, which is more than the figure shown as the gross value of his estate.  However, the Solicitors dealing with the estate of the deceased’s husband refer to the existence of a mortgage secured on the property and that certain Australia Mutual Policies which paid out on death had been sufficient to discharge this and so it is possible that the amount of the mortgage reduced the value of the estate significantly so that the deceased was sole owner and this is supported by later statement of the deceased.  I accept that he was more likely than not to be the sole owner
17	Amongst the deceased’s papers was an envelope bearing a postage mark dated 6 November 1969 and on the back of this the deceased had made notes of her financial position.  It is possible that this reflects her cash position following the sale of Rosemount Cottage and the purchase of Abinger Court which cost some £10,000 less than the amount received from the sale of Rosemont Cottage.  This note refers to deposits made at Abbey National and Huddersfield Building Societies.  It is clear that £7000 had been deposited with Abbey National and whilst it is not absolutely clear that £3000 was deposited with Huddersfield Building Society it is likely that this is the case and another document handwritten by the deceased concerning her income for the purposes of the 1971/72 tax return supports this and the same document shows income from 77 BP shares or stock.
18	The deceased had inherited some assets from her parents when they died in 1944.  When she and her husband executed similar Wills in 1965 she (but not her husband) provided for a cash legacy of £500 to be given to each of her two daughters.  I accept this represented the whole or a part of the value of the inheritance.
19	When, in 1978, the joint statement intended for signature by the deceased and Mr Dodd was drafted it included a statement that the deceased was “the owner of a freehold property No.15 Abinger Close, Bickley and of household furnishings investments and cash the greater part of which was derived from her deceased husband”.  Of course No.15 Abinger Close was sold in 1984 during the deceased’s lifetime and 10 Hollington Court was purchased with the proceeds of sale of Abinger Close plus additional cash of £6,420 provided by the deceased.  There is no clear evidence of the source of the additional cash.
20	When the deceased died she owned an investment in BP PLC then worth £21,226.12.  A provisional allotment letter addressed to the deceased’s late husband whilst he was still alive shows that his then holding of 72 Ordinary £1 stock in 1966 was increased by an additional 5 ordinary £1 shares as a result of a purchase.  These 77 shares were inherited by the deceased in 1969 but she subsequently increased that holding by taking up rights between 1971 and August 1988 at a total cost of £1140.75.  Again there is no clear evidence of the source of the additional cash.
21	In 1998 or 1999 the deceased inherited assets in the form of a share portfolio from Mr. Dodd when he died.  This portfolio was worth in excess of £100,000.  In a letter from NatWest written to the deceased in April 1999 the management of this portfolio was discussed and reference was also made to the fact that, besides this portfolio, the deceased had £87,000 worth of shares in her own name.  At the time the letter was written the deceased was unsure whether to amalgamate the holdings for management purposes by NatWest and that was not discussed any further at that time.
22	When the deceased died she owned the flat at 10 Hollington Court as well as other assets comprising quoted stocks and shares (including the BP Holding), War Loan, National Saving certificates, cash and bonds.  Of course the investments represented in part those assets inherited from Mr Dodd.  There is no evidence that the deceased used capital for living expenses during her lifetime and apart from the additional capital invested in 10 Hollington Court all the evidence suggests that her capital was invested and reinvested in building up the portfolio of investments held at her death.  One of the investments she made was in purchasing rights in BP PLC and looking at the purchase date of these rights and at the date of purchase of Hollington Court it is clear that neither of these were funded out of assets inherited from Mr Dodd.  Whilst it is not clear whether they were funded out of assets inherited from her parents or out of her own savings (she had employment income) rather than exclusively out of assets derived from the deceased I accept as correct the statement in the draft prepared for signature by Mr. Dodd and the deceased that in 1998 the greater part of the deceased’s assets derived from her late husband and so I find it is likely that the greater part of the capital required to buy Hollington Court and the BP share rights also derived from the deceased’s husband.
	Consideration of the issues in the appeal.
23	I now consider the issues in the appeal in the light of these findings of fact.
	Was there a trust between the deceased and her late husband?
	The Legislation
24	The legislation relevant to this issue is paragraph 2, Schedule 6 of the 1894 Act and Sections 5(2) and 22(i)(c) of the Finance Act 1894 and the proviso to Section 14 of the Finance Act 1914, which together provide that in certain circumstances property is to be left out of account for inheritance tax purposes on the death of one party to a marriage if estate duty was paid on the death of the other party to that marriage.  In order for property to be left out of account in this way, it is also necessary to show that the property was settled property when the first spouse died and the second spouse was not competent to dispose of it.
	The arguments
25	It was the Appellants’ case that certain assets should be left out of account of the deceased’s estate for the purpose of the inheritance tax charge on her death as a result of paragraph 2 of Schedule 6 of the 1984 Act applying to them.  These assets were the flat at Hollington Court and the holding of shares in BP PLC.  The reason for the Appellants’ case is that these assets were derived from assets owned by the deceased’s husband and inherited by the deceased from him but which were the subject of a fully secret trust made between the deceased and her husband in 1965, or alternatively, that they were subject to a trust as a result of a mutual Wills.  They also say that the existence of a trust meant that the property was settled property when the deceased’s husband died, that it was subject to estate duty on his death and that as a result of the terms of the trust the deceased was not competent to dispose of the property for the purposes of section 5(2) Finance Act 1894 so that the provisions of paragraph 2, Schedule 6 of the 1984 Act were satisfied in respect of this property.  The Revenue’s case was that there is no evidence to support an assertion that there was an undertaking or understanding between them at or around the time they made similar Wills in 1965, which was binding on the deceased in such a way that she was subject to a trust.  They say that none of the evidence shows, on a balance of probabilities, that there was an intention of the part of the deceased’s husband to impose a legally enforceable duty on the deceased.  They also say that there is no evidence of the subject matter of the alleged trust and whether it was intended to extend to the whole or just some part of his estate.  They do accept that, if their argument is wrong and there is settled property, it is likely that estate duty would have been paid in respect of all the property in the estate of the deceased’s husband, but argue that the extent of any relief is difficult to calculate because of the difficulty of identifying the assets that actually formed part of the deceased’s husband’s estate (for example whether he was sole owner of Rosemount Cottage) and whether any of his assets were used to purchase the BP PLC share rights after he died.
	Reasons for decision
26	I accept that the deceased’s husband owned 77 shares of BP PLC when he died and that, on the balance of probabilities, he was sole owner of Rosemount Cottage.  I also accept that the deceased was determined to leave her assets to her two daughters and took great care, after her husband died, to protect those assets - which I also accept were, before Mr Dodd died, in greater part derived from her husband - from claims from third parties.  It is evident that the deceased carried out her intention to leave all her assets to her two daughters.  This is not sufficient for the exemption in paragraph 2, Schedule 6 of the 1984 Act to apply.  The exemption only applies if there is settled property.  There is no written trust of any of the assets which passed from the deceased’s husband to the deceased.  His Will provided for her to take an absolute interest.  There is no evidence that the deceased’s husband was a beneficiary of any written trust; it appears that the property which passed from him to the deceased was owned outright by him.  The Appellants’ main argument rests on the fact there was a secret trust.
27	McCormick v. Grogan (1869) LR 4HL 82 at 88-89 is authority for the principle that a secret trust is created where, although property is given apparently outright by a testator to a person, that person states he will carry into effect an understanding with the testator that the property is to be applied for the benefit of some other person.  It is also authority for the principle that such an understanding can be inferred from the conduct of the person who apparently inherits outright.  Re Snowden (dec’d) [1979] Ch. 528 at 537 is authority for the principle that the burden of proving a secret trust is on those who seek to establish it; that in the absence of fraud the standard of proof is the ordinary civil standard of proof that is required to establish an ordinary trust - the balance of probabilities.  It is also authority for the fact that the testator must intend to create a trust as distinct from a moral or family obligation.
This principle was followed in Kasperbauer v. Griffiths [2002] WTLR where Ottaway v. Norman [1972] Ch. 698 at 711 was referred to as authority for the principle that it is an essential element that the testator must intend to subject the legatee to an obligation in favour of the intended beneficiary.
Blackwell v. Blackwell [1929] HL 318 is authority for the principle that past evidence is admissible to establish a trust.
28	In accordance with these principles I have considered the evidence to see if it supports the argument that the deceased’s husband imposed a legally enforceable duty on the deceased to hold the property (which he apparently left outright to her on his death) for their two daughters but on the basis that she could use the property for her maintenance whilst she was alive.
29	I must deal with one subsidiary point first.  The revenue accepts that if there was an enforceable duty and a trust they would also accept that the deceased’s ability to use the property for maintenance did not mean she was competent to dispose of it.  It is a condition of the estate duty exemption that the surviving spouse was not competent to dispose of the settled property and so paragraph 2, Schedule 6 of the 1984 Act exemption would not apply if she was competent to dispose of it.
30	There is evidence that the deceased was anxious that her engagement and intended marriage to Mr. Dodd might prevent her daughters inheriting her assets.  She was sufficiently concerned about this to take legal advice and there is some evidence that her concerns were sufficient to prevent the intended marriage from being solemnised.  There is evidence that in 1965 the deceased intended that £500 should pass to each of her daughters if she died first and that this money probably represented money she had inherited from her own parents.  There is evidence that in 1965 she and her husband both intended that most of their assets should pass to the survivor and upon the survivor’s death (or if the survivor died shortly after the first to die) to their two daughters.  There is nothing very surprising about this evidence and it is consistent with the wishes of many families.  It is perhaps striking that the deceased, in 1965, made arrangements to leave cash sums direct to the daughters rather than to her husband if she was the first to die.  This suggests that the deceased was anxious to benefit her daughters even during her husband’s lifetime.  It was suggested that she was in a position to do this because of her inheritance from her parents and that her husband simply did not have available cash to provide for them if he died first but it might also suggest that it was the deceased rather than her husband who was particularly anxious about provision for their daughters.  There is evidence that the deceased spoke to her daughters about her wish to leave them her property and share with them her concern that her marriage to Mr. Dodd might prevent this from happening but apart from the statement she intended to make if the joint declaration drafted for signature by her and Mr. Dodd was finalised there is no evidence that the concern arose because she had inherited from her husband still less as a result of any obligation that he had imposed upon her.
31	I conclude that there is no evidence that the deceased’s husband had imposed any legally enforceable duty on her to leave property derived from him to the children.  I considered an alternative assertion that the 1965 wills were mutual wills so that on the death of the deceased’s husband the deceased held the relevant property on constructive trust for the daughters.  Re Cleaver [1981] 2 All ER 1018 at 1023 is authority for the principle that for mutual wills to be enforceable it had to be established by clear and satisfactory evidence that on the balance of probabilities there had been agreement between the two makers to dispose of their property in a similar way under mutual wills and it is not sufficient to find mere simultaneity of wills and similarity of terms but the fact there were such wills was a relevant circumstance to take into account.  Again, I can find no evidence of such an agreement between the deceased and her husband; of course it is likely that the wills were discussed but there is no evidence that the discussions amounted to any binding agreement.  The deceased certainly made a new will in her daughters’ favour shortly after her husband died but this was no indication of the need to comply with any agreement; they would have inherited under the 1965 will since their father had predeceased the deceased.
32	As I can find no evidence to support the existence either of a secret trust or of a trust arising from mutual wills I shall not deal with two further issues that would have been relevant had such evidence existed.  One of those issues is the date on which any trust would have come into effect and therefore whether there was settled property when the deceased’s husband died and the other is the extent and identity of property was the subject matter of that trust for the purposes of any exemption that might then have applied as a result of paragraph 2 of Schedule 6 to the 1984 Act.
33	The appeal is dismissed.

	

	
	Appeal dismissed

Authorities referred to in skeletons and not referred to in decision
Voges v. Monaghan (1954) 94 CLR 232
Re Goodchild [1996] 1 All ER 670
Re Fleetwood, Sidgreaves v. Brewer (1980) 15 CLD 594
Han v. Customs and Excise Commissioners [2001] 1 WLR 2253

JUDITH POWELL
TRIBUNAL JUDGE
RELEASE DATE: 9 June 2009