Naidoo v Barton [2023] EWHC 500 (Ch) recently clarified the approach to be taken when assessing whether undue influence was exerted on those making mutual wills. It was determined that the test applicable to lifetime transactions is to be preferred over the probate test.

Naidoo v Barton [2023] EWHC 500 (Ch) Background

Dr Naidoo and Mrs Naidoo were the testators in this case. Their son, Charan, was the Claimant and accused his brother, David Barton, of exercising undue influence over their parents in relation to a number of aspects of their lives, including their execution of mutual wills in late 1998. Such wills left everything to each other, then to Mr Barton, or Mrs Barton should he predecease his parents.

Dr Naidoo was unwell for some time and died in 1999. In the following years Mrs Naidoo sought advice as to enforceability of the mutual wills and later created several new wills, including the most recent one in 2015. This latest will appointed Charan as sole executor and beneficiary. Mrs Naidoo died in 2016.

Charan’s claim was for an order pronouncing the 2015 will and for rescission of a number of transfers by Mrs Naidoo.

HHJ Cadwallader found that the 1998 mutual wills were mutual wills before deciding the test applicable for undoing the agreement by undue influence.

Mutual Wills

The elements constituting mutual wills were not contested in Naidoo. Mutual wills are joint or separate wills made in consequence of some agreement between the parties not to revoke the wills without consent of the other testator. They usually confer reciprocal benefits before leaving property to identifiable beneficiaries. Mutual wills create a binding obligation on the survivor to ensure that the beneficiaries originally identified do ultimately benefit. They are one step beyond ‘mirror wills’ due to such obligation.

Whilst both testators are alive, the wills can be modified upon agreement between the parties. Following the death of one, the property which will ultimately go to the intended beneficiaries is held by the surviving testator on trust.

The agreement between the parties to enter into mutual wills must be an enforceable contract and so comply with all the usual principles. The agreement can be in the will, or explicitly or impliedly outside of it, or even oral. It is preferable that it is written into the will.  

The burden of proving that there is a mutual wills agreement rests upon the person seeking to rely upon it. In Naidoo, this was the Defendant, Mr Barton. In its assessment , the court presumes the improbability of the testator fettering their ability to change their will later.

Undue Influence

Undue influence, formerly labelled duress, is a principle that prevents someone exerting and abusing power they have over someone else. There are two types: overt acts of unreasonable pressure or coercion, and the exploitation of a relationship of trust and confidence.

The burden of proving undue influence generally rests with the person claiming it. However, in cases of the second type, where there is a transaction that calls for an explanation, the burden shifts as a presumption of undue influence arises. Unless a satisfactory explanation can be provided, undue influence will not be rebutted.

In probate claims, undue influence is never presumed, and so there is a harder evidential burden to discharge. In relation to lifetime transactions, presumed undue influence may be established, thus switching the burden. Naidoo is important for clarifying which test should be applied to mutual wills.

The Court’s decision

HHJ Cadwallader answered two issues of note in relating to the interplay of mutual wills and undue influence.

Firstly, HHJ Cadwallader determined that in cases such as this, where there are mutual wills, but for some reason such as undue influence, the agreement is voidable, the equitable principle of mutual wills is not to be held up as there is ‘no basis for equity to intervene to impose a trust’. ‘To do so would mean that equity would be speaking with two voices’.

Secondly, HHJ Cadwallader determined the test to be applied to discern whether undue influence affected the agreement. HHJ found it to be the less stringent test, equitable doctrine as applicable to lifetime dispositions. HHJ distinguished the agreement as a contract and not a testamentary disposition.

HHJ Cadwallader’s reasoning was that the agreement does not require the same execution formalities and in the present case it was accepted by the Counsel for the David Barton that the agreement did not affect the validity of any of the subsequent wills. Thus, HHJ found it ‘impossible to see why a test of undue influence developed for probate purposes and concerned with the validity of a will’ should be used instead of equitable doctrine designed for avoiding contracts and lifetime dispositions.  

HHJ Cadwallader ordered the rescission of the 1998 wills and the admission of the 2015 Will to probate.

Article written by Oliver Clark – Trainee Solicitor