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Undue influence and clarification of the relevant test in challenging mutual wills

Posted on 16 March 2023

The recent case of Naidoo v Barton involved the successful challenge to a mutual will by the named executor (and one of the sons of the deceased) under a later will.

Mutual wills are to be distinguished from mirror wills. In this case, in 1998, Mrs Naidoo and her husband had, at the encouragement of another son (the defendant Mr Barton), entered into mutual wills leaving their estate to each other and then to Mr Barton and his wife. The effect of a mutual will is that a constructive trust is imposed on the parties, which means that the provisions in the will are unalterable and would serve to prevent Mrs Naidoo from entering into a new later will which changed the provision of her estate after her husband's death. Had they entered into mirror wills, the testamentary dispositions may have been the same (whereby the estate passes to the surviving spouse and then to a child/ children), but the will is not irrevocable and no constructive trust is implied.

The claimant was one of seven children of Dr and Mrs Naidoo. He sought probate in solemn form of a later 2015 will of Mrs Naidoo (executed after her husband's death), rescission of the 1998 will and also rescission of a number of transactions undertaken by Mrs Naidoo, or both Dr and Mrs Naidoo, during their lifetime. This was on the basis of mistake (that the surviving spouse could alter their will) or on the basis of Mr Barton's undue influence. At the time of the trial, Mr Barton was in jail having been convicted of a number of counts of conspiracy to defraud, theft and fraud relating to elderly residents in his care at his nursing home.

HHJ Cadwallader did not find that there had been any mistake in the Naidoos' understanding that the wills were mutual. He then had to consider the relevant test for undue influence in the context of mutual wills.

There are two tests which can apply when considering a challenge to a document or transaction based on undue influence. The tests require different evidential burdens and apply differing remedies. Firstly there is the test set down in the case of Royal Bank of Scotland Plc v Etridge (No 2) in 2002, which applies the equitable doctrine, and secondly there is the common law doctrine (the probate doctrine) which applies to setting aside a will. The latter test set a high evidential burden, requiring actual proof that "such pressure has been placed on the testator as to overpower the volition without convincing the judgment" (paragraph 41), namely evidence of coercion. The equitable test can establish undue influence where the relevant presumption arises. 

In this case, the Etridge equitable test was held to be the appropriate test. A mutual will agreement was a contract, not a testamentary disposition. In considering the relevant presumption, Dr and Mrs Naidoo were vulnerable and had placed trust and confidence in Mr Barton who was in a position of influence. The mutual will agreement in Mr Barton's favour was one which required explanation. This placed the burden on Mr Barton to rebut the presumption of undue influence in the case and no satisfactory explanation had been provided. The mutual will agreement and the majority of the other transactions were therefore set aside and the later 2015 will pronounced in solemn form.

The case serves to provide useful clarity on the law of mutual wills, and on the appropriate test to apply when advising on claims of undue influence and guidance on rebutting the presumption of undue influence.

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