13 April 2023 by Selina Atim

Mutual wills

What is a Mutual Will?

Mutual Wills are Wills which are made by two people who agree that, during each person’s lifetime, they will not revoke or amend their Will without the consent of the other and, even after the death of the first person, they will not change their Will.

Mutual Wills can avoid the risk of the surviving person making a new Will after the first death in different terms. In certain family situations, this can be a helpful tool – for example, in second marriages where each person wants to ensure their own children are provided for down the line, even if they were to pass away before their partner.

Mutual Wills are unlike mirror Wills, which are made when two people make Wills with the same terms, but they can be changed in the future, without consulting the other person.

In the recent case of Naidoo v Barton [2023] EWHC 500 (Ch), the Court set aside a 25-year-old mutual Will a couple made. This case considers the approach to be taken to the question of whether or not an agreement to make a mutual Will is liable to be set aside on the grounds of undue influence.

Naidoo v Barton – background facts

The case concerned the mutual Wills of a married couple, Dr Govindarajaloo Ramamurthie Naidoo (‘Dr Naidoo’) and Mrs Nirmalathevie Naidoo (‘Mrs Naidoo’).

On 25 November 1998, Dr Naidoo was in ill health when one of the couple’s children, David Barton (‘Mr Barton’) encouraged his parents to enter into mutual Wills leaving their estate to each other, failing which, to Mr Barton and then to his wife.

On 12 January 1999, Dr Naidoo sadly passed away, with his entire estate passing to Mrs Naidoo.

Nearly 17 years later, Mrs Naidoo updated her Will on 21 July 2015 (the ‘2015 Will’), appointing the couple’s sixth eldest child, Charan Naidoo as her sole executor and beneficiary. Mrs Naidoo died on 10 February 2016 and Charan obtained a Grant of Probate of the 2015 Will.

Mr Barton denied that the 2015 Will was valid on the basis that the couple had previously made mutual Wills in 1998, which Mrs Naidoo was still bound by.

Charan claimed that the mutual Wills agreement should be set aside on the grounds that Dr and Mrs Naidoo had shared a common mistake that the survivor would be free to change their Will.

This argument was rejected by the Court on the basis that Dr and Mrs Naidoo had understood the effect of mutual Wills, having received sufficient legal advice.

The Court did, however, decide that the mutual Wills agreement was invalid as it was procured by the undue influence of Mr Barton.

During the hearing of the claim, Mr Barton gave evidence remotely as he was serving a prison sentence, having been convicted of conspiracy to defraud, theft and fraud against a number of elderly residents at his nursing home.

Conclusion

The Judge concluded that Mr Barton had been responsible for his parents’ giving instructions that the Wills be mutual, and that they did so as a result of Mr Barton abusing their vulnerability and his influence upon them.

The first mention of mutual Wills appeared to have come from Mr Barton. His parents were giving instructions in which mutual Wills played no part and it was not until a later stage that their instructions changed.

The Judge confirmed Charan was able to rely on undue influence by Mr Barton whose conduct arose out of the relationship he had with his parents. Mr Barton had a measure of influence or ascendancy over his parents, who trusted him, and he took unfair advantage of this.

The Judge ordered the admission of the 2015 Will to probate.

If you would like further information on this area of the law or would like advice in relation to a similar issue, please contact our Disputed Wills & Trusts team.

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