undue influence

Undue influence: 25-year-old mutual wills overturned after son’s claim

A pair of mutual wills drafted by a couple in 1998 have been overturned by the High Court following a claim of undue influence by one of their sons in Naidoo v Barton, 2023 EWHC 500 Ch.

Dr Govindarajaloo Ramamurthie Naidoo and Mrs Nirmalathevie Naidoo had seven children. Between them, they owned all of the shares of Choiceclassic Ltd which were spread across the family prior to 1992.

At this point, one of the couple’s sons, David Barton, had the other family members transfer their shares to him and proceeded to run the business for his own benefit, paying off his parents’ directors accounts – which were overdrawn by nearly £400,000 – in return.

When Dr Naidoo was nearing his demise in 1998, Barton had his parents draft a pair of wills which expressly provided for them to be mutual, with each will appointing their spouse and Barton as executors. Both wills provided for any remaining assets to pass to the surviving spouse and then to Barton on their demise.

In 2015, with Dr Naidoo now dead for over 16 years, Mrs Naidoo made a new will and nominated Barton’s younger brother Charan Naidoo – the claimant in the case – as sole executor and beneficiary.

Following Mrs Naidoo’s passing, Barton challenged the 2015 will on the grounds of the mutual wills agreement and the solicitors’ advice at the time of drafting those wills, also raising a laches defence on the grounds that the mutual wills were executed so long ago.

The claim reached the High Court in September 2021 with the claimant requesting recission of the 1998 will with the 2015 pronounced valid. This claim was made on two grounds: the mistake of Mrs Naidoo and the undue influence of Barton.

The mistake, said Naidoo, was the belief that the mutual wills agreement would’ve left Mrs Naidoo with the ability to alter the will after Dr Naidoo’s death should her intentions change. The High Court rejected this claim.

The claim of undue influence was made on the basis that Mrs Naidoo was in a vulnerable position and that there her relationship with Barton was one of confidence and trust, thus leading to her and Dr Naidoo relying on his advice in 1998.

The effect of Barton’s advice was that Mrs Naidoo was locked into trusting Barton to look after the rest of the family after her and her husband’s deaths, something that “left the rest of the family at [Barton’s] mercy,” said His Honour Judge Cadwallader in his judgment, adding: “The only person to benefit from that […] was Mr Barton himself.”

Cadwalladr HHJ noted that Barton was responsible for the parents’ representation that they wanted mutual wills, and that this came ultimately came about because of his influence and abuse of their vulnerability – complemented by the fact that, at some subsequent meetings, his parents gave instructions where the concept of mutual wills did not feature.

He went on to say any benefit to the couple of mutual wills was far outweighed by the loss of the right to alter their testamentary provisions at any point down the line. He also said the couple received “no such advice” relating to ensuring their wish to enter into a mutual wills agreement.

He subsequently ordered the rescission of the earlier will and the admission of the 2015 will to probate.

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