Mutual Wills and Undue influence

A son who manipulated his elderly parents into making mutual Wills entirely in his favour has been rumbled by the High Court.

David Barton’s unscrupulous actions were brought to light by his brother, Charan Naidoo, who challenged the validity of the Wills.

He said the mutual Wills should be set aside and that the Will made by his mother in 2015 – more than a decade after her husband’s death – naming him as executor and sole beneficiary, should stand.

The judge agreed that David Barton had indeed exerted undue influence over his parents, who had not received the appropriate advice at the time, and overturned the Wills.

Why is this mutual Wills case important?

It clarifies an important legal position because, for the first time ever, a judge allowed a mutual Will to be challenged on the basis of undue influence.

He then ordered the recission of the Wills. This is where the contract is set aside and the parties are put back in the position they were in before the contract – in this case the mutual Will – was made.

This meant that Mrs Naidoo’s 2015 Will leaving everything to her other son, Charan, was the one to be admitted to probate. The mutual Wills that she and her husband had made together back in 1998 were set aside.

What’s the difference between mirror Wills and mutual Wills?

It is useful to look at the difference between these two types of Will to understand the case.

• Mirror Wills are two separate documents often made by couples, neither of which is binding on the other person. They can be changed or revoked at any time without the other person knowing.
• Mutual Wills are also two separate documents but are much rarer. Unlike mirror Wills, they create a legally binding contract between the couple. Neither person can change or revoke their Will without the other’s permission and after the death of the first person, the Mutual Will Agreement becomes permanently irrevocable.

Get in touch

If you would like to contest or defend a Will, the help of a specialist lawyer is vital as every case needs to be looked at on an individual basis. Time limits also apply.

For help and advice, please contact Wards Solicitors’ Contentious Trusts and Probate Team.

Our lawyers are members of the Association of Contentious Trusts and Probate Specialists (ACTAPS), the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and the Law Society’s Probate Panel. All demand a high level of expertise and up to date knowledge from their members.

Wards Solicitors’ team is praised by the Legal 500 Guide for 2023 for its broad contentious trusts and probate practice with a particular emphasis on Inheritance Act and Court of Protection matters.

Head of the team, Elizabeth Fry, is highlighted as a key lawyer specialising in high value and multi-jurisdictional matters with four other members of the team also recommended.