Undue Influence in Mutual Wills Case
It is not only recent Wills that can be contested, as a High Court case revealed when a pair of mutual Wills prepared over 25 years ago were challenged and overturned, with a High Court Judge ruling that the couple had been unduly influenced by their son when they were preparing the original mutual Wills.
The couple making the Wills had a total of seven children and in 1998, just before his father’s death, their son, David influenced his parents to prepare Wills which provided for them to be mutual.
The Wills provided that the surviving spouse and David would be the Executors and that any assets would initially pass to the surviving spouse and then to David on the death of both parents.
What is a Mutual Will?
Mutual Wills are Wills which are made by two people, usually spouses, with the agreement that they will not change them without each other’s consent. On the death of the first person, the other is bound by the terms of the original Will and is unable to change their mutual Will.
Naidoo V Barton
This situation arose in the case Naidoo v Barton, 2023. Mrs Naidoo, over 16 years after her husband’s death, made a new Will in 2015, in which she appointed her younger son, Charan as sole Executor and beneficiary and revoked her earlier 1998 Will.
After Mrs Naidoo’s death, David sought to challenge the 2015 Will, claiming that the 1998 Wills which were prepared over 25 years ago, were mutual and this prevented Mrs Naidoo from making the new Will in 2015.
The younger son, Charan, commenced proceedings claiming that his mother had been unduly influenced when making the 1998 Will by her son David.
Commenting on the case, Laura Pracy, Solicitor and Head of Inheritance and Will Disputes at Pearson said:
“He claimed his mother was in a vulnerable position and that the relationship with her son David was one of trust and confidence, which had led her to rely on David’s advice. Charan sought to rescind the 1998 Will on the grounds of undue influence.”
“It can be a highly emotional and distressing time for families when a Will is challenged. However, it is important that you obtain the right advice as soon as possible and look at all the circumstances around when the Will was made."
“If, as was proved in this case, a Will has been prepared as a result of undue influence and the testator, the person making the Will, had been pressured into making the Will, then in certain circumstances, the Will can be challenged,” added Laura Pracy.
Judgment of undue influence
In reaching his Judgment, His Honour Judge Cadwallader noted that David was responsible for the parents’ representation that they wanted mutual Wills and that this came about due to his influence and abuse of his parents. vulnerability. This was supported by the fact that, at some subsequent meetings, his parents gave instructions where the concept of mutual Wills did not feature.
He also said that the effect of the advice Mrs Naidoo received from David meant that she was unable to change her Will and the existence of the 1998 mutual Will “left the rest of the family at [David’s] mercy,” with the only person to benefit being David.
The Court ordered that the 1998 Will was to be rescinded and the 2015 one was found to be the last valid Will of Mrs Naidoo.
“This was a case where even when the undue influence had taken place many years before, it did not prevent a challenge being made,” added Laura.
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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.