Charanjeet Kaur A/p Sukhbir Singh v Zhao Jingkun

Case Significance

Confirms that mutual wills can be established by extrinsic evidence of an agreement to make irrevocable dispositions, and that on the first testator's death a constructive trust binds the survivor and prevents an inconsistent later will.

This Court of Appeal decision, given by a majority, concerns the doctrine of mutual wills and when a will may become irrevocable in equity. A married couple who had no children each executed substantially identical wills in 2007, leaving their jointly owned matrimonial home to a niece of whom they were fond. After the first wife's death, the surviving husband remarried and, in 2014, made a further will leaving the same house to his second wife. On his death, the executor of the earlier will contended that the 2007 wills were mutual wills and therefore irrevocable, while the second wife relied on the later will. The central issue was whether the earlier wills were mutual, so that the survivor could not depart from them, or whether the husband remained free to make a fresh testamentary disposition. The High Court had ruled in favour of the 2014 will. The Court of Appeal, by majority, held that the 2007 wills constituted mutual wills, finding sufficient evidence of an agreement that the dispositions were intended to be irrevocable upon the death of the first testator. It emphasised that irrevocability need not be expressly stated in the wills and may be established through the surrounding circumstances and credible extrinsic evidence. On the first wife's death, a constructive trust arose that bound the surviving husband to the terms of the mutual wills and prevented any later testamentary disposition inconsistent with that arrangement. Holding that the High Court had not given sufficient appreciation to the evidence, the majority set aside its decision, upheld the mutual-wills arrangement over the 2014 will, and allowed the appeals with costs; one member of the panel dissented. The judgment is significant for its treatment of the proof and effect of mutual wills and the constructive trust that enforces them. The decision is a valuable Malaysian statement of the mutual-wills doctrine and the equity that enforces it, confirming that a survivor who takes the benefit of a mutual arrangement cannot afterwards defeat the agreed disposition by making a fresh will in different terms.