Mutual Wills and Undue Influence

A mutual will goes one step further than a mirror will in that it includes a contractual agreement between the parties not to change the will’s terms after one of them dies.

The very nature of mutual wills means there are inherent risks, which is why they are not that common.

Practitioners will not typically recommend a mutual will unless there are specific reasons to do so. Even then, great care must be taken to protect the parties. The court’s approach in a recent dispute involving mutual wills and undue influence is important.

In Naidoo v Barton, the judge found unequivocally that a couple was vulnerable when making mutual wills in 1998. They were not acting of their own free will – their wills were procured under their son’s undue influence. A weighty factor was the son’s criminal record.

By way of reminder, undue influence is an equitable remedy available to ensure that the influence of one person over another is not abused. The leading authority is Etridge (No.2) (2002)1.

Several of the Naidoo family members ran a successful nursing home business, until 1992 when the couple’s second eldest son David Barton (B) persuaded other family members to transfer the entire share capital to him. Mr and Mrs Naidoo and two of their sons resigned their directorships; Mrs B became a director; and the business was run for B’s own benefit from then on.

The Wills

In 1998, Mr and Mrs Naidoo made mutual wills leaving their estates to each other, and on the death of the survivor – to B (or his wife if he predeceased her). B was also appointed executor. Mr N died in January 1999.

In 2015, just months before she died, Mrs Naidoo made a new will appointing a different son (C) sole executor and beneficiary. C issued proceedings for an order pronouncing for the validity of the 2015 will and asked the court to rescind the 1998 will on grounds of mistake and undue influence.

B defended the claim and placed particular reliance on the fact that they had relied on solicitors’ advice in relation to the drawing up and drafting of the wills.

David Barton

Meanwhile, B was subject to a restraint order preventing him from disposing of, dealing with or diminishing the value of his assets. His wife was also subject to a restraint order.

Even more significantly, B was serving a 17-year prison sentence for fraud offences against wealthy care home residents (he attended the hearing remotely). The judge found his criminal conviction ‘highly relevant’ to the wills dispute: “The facts upon which he was convicted included the use of fairly sophisticated legal devices, including wills, contracts, spurious gifts, loans of transfers of land and other property to enrich himself at the expense of vulnerable persons who placed their trust in him and were, to a degree, in his power.

“That is highly relevant to the facts of this case, as it shows evidence of character, propensity, and ability to behave in the way described, including the use of threats of legal proceedings… it also substantially undermines his credibility as a witness.” Furthermore, there was no evidence of a subsequent change of character on B’s part.

Undue influence

The judge concluded that the 1998 was the result of undue influence. Mrs Naidoo had been in a vulnerable position (as was her late husband who was very unwell). By the time of the mutual wills, they were in a “profound relationship of trust in and dependency on” B which his parents had relied on.

B had been responsible for his parents instructions that the wills be mutual. The effect of the will was to leave Mrs Naidoo “locked in” to having to trust B after her husband died – and B was the only person to benefit from that.

As for B’s reliance on the legal advice taken, the judge said “the mere fact that legal advice is obtained cannot suffice, unless it is proper to infer that it must have led to a decision based upon full, free and informed thought”. Proof of external advice does not, of itself, necessarily show that the completion of the transaction was free from the exercise of undue influence.

An order was made rescinding the 1998 will and the 2015 will would be admitted to probate.

Key takeaway

As Cadwallader HHJ observes: “It is notorious to lawyers… that a decision to make mutual wills needs to be considered with great care, and will not usually be the appropriate decision, precisely because of its inflexibility, when much may change during the life of the survivor.”

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1Naidoo v Barton, 2023 EWHC 500 Ch

1Royal Bank of Scotland Plc v Etridge (No.2) [2002] 2 AC 773.


Posted on 05.04.23