Set-Aside Of A Mutual Will Ordered By The High Court On The Basis Of Presumed Undue Influence

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Author: Mr Richard Norridge and Hussein Mithani
• Published date: 17 April 2023

Summary

In Naidoo v Barton [2023] EWHC 500 Ch, the High Court ordered that a 25 year old mutual will be set-aside on the basis of undue influence. The Court determined that the testatrix was unduly influenced by her son as she was in a vulnerable position and had relied on him rather than through improper pressure or coercion.

Hussein Mithani, an associate in our disputes and private wealth team, considers the decision in more detail below.

Background

The case concerns the mutual wills of Dr Govindarajaloo Ramamurthie Naidoo (the "Testator") and Mrs Nirmalathevie Naidoo (the "Testatrix"). They had seven children, for this case the relevant children are David Barton (the "Defendant") and Charan Naidoo (the "Claimant"). The family owned a nursing home business.

In November 1998, the Testator was in poor health and the Defendant organised wills for the Testator and Testatrix. The wills were mutual wills and appointed the other spouse and the Defendant as executors. The wills provided that the estate of the first to die should pass to the surviving spouse, and then on the death of the surviving spouse to the Defendant absolutely. Less than two months later, the Testator passed away.

In July 2015, the Testatrix made a new will nominating the Claimant as executor and sole beneficiary (the "2015 Will") and in February 2016 and the Claimant obtained a grant of probate for this will in July 2017. The Defendant sought to dispute this on the basis the mutual will was valid.

The Claimant sought an order pronouncing for the validity of the 2015 will and requested the mutual will be rescinded one of two grounds: (i) mistake on the part of the Testatrix; and (ii) undue influence on the part of the Defendant. The Claimant also made various claims to rescind transfers of shares in the family business. These claims are not covered in this post.

In brief, the Claimant's claim for mistake was that the explanation of mutual wills to the Testatrix was misleading and she thought she was able to change who the beneficiaries of the will were in future. The Claimant's claim for undue influence was that the Testator and Testatrix were in a vulnerable position, relied on the Defendant, and the mutual wills for the benefit of the Defendant was a transaction that called for explanation.

The Defendant denied that the mutual wills agreement should be set aside on the grounds of mistake or undue influence and stated that the mutual wills were drawn up on the advice of the solicitors. It...