I appeared for the respondent in this recent case, who was the surviving testator under a mutual wills agreement. The Applicant, who asserted he was one of the ultimate beneficiaries of the mutual wills agreement, applied to court, after the death of his father, to force his step mother to disclose her assets and liabilities to him.  He argued she was obliged to do so on the basis that she was a trustee of those assets for him (and others), because she held them on a constructive trust, as a result of the mutual wills agreement. The respondent argued that a constructive trust was remedial, in other words, it was a remedy the court might impose if a person breached their obligations under a mutual will agreement.  In absence of that, no trust arose and there was no obligation for the survivor to account to the ultimate beneficiaries during her lifetime. Ryan J agreed.  The judgment sets out a very detailed analysis of mutual wills cases and the nature of the survivor’s obligations.  The judgment is lengthy (being 43 pages), but if you want a shortcut to the summary of her findings on the law, skip straight to p42 para [201].

You can read the case Forster v Forster [2022] QSC 30 here.