Mirror, Mirror on the Wills!
The recent case of Naidoo, Naidoo -v- Barton and Another has highlighted the important distinction between mirror wills and mutual wills. Mirror wills, often made at the same time by spouses or civil partners, are, as the name suggests, wills which reflect the terms of each other. With mutual wills, on top of this, there is also a binding agreement that neither party will alter or revoke either will during their lifetime without the other’s consent or after the death of the first to die. The terms of the mutual wills therefore remain binding on the survivor after the death of the first to die, whether or not the survivor makes a later will.
Dr and Mrs Naidoo had seven children. In 1998, encouraged by one of their children Mr Barton, they made mutual wills leaving everything to each other, but if their spouse had already died, to Mr Barton and then Mr Barton’s wife.
Dr Naidoo died the following year. In July 2015, no longer under Mr Barton’s control and influence, Mrs Naidoo made a new will appointing another child, Charan, as the sole executor and beneficiary. Mrs Naidoo died the following year.
Charan, as the claimant, sought an order pronouncing in favour of the 2015 will and challenging various lifetime transactions. The defendants claimed that as Mrs Naidoo was bound by the mutual wills agreement in 1998, the 2015 will was ineffective in the sense that the personal representatives of the later will held Mrs Naidoo’s estate on an implied trust for the beneficiaries named in the 1998 will.
For the 2015 will to be upheld, Charan needed to attack the validity of Mrs Naidoo’s alleged mutual will agreement in 1998. A challenge to that on the basis of mutual mistake failed and the court then went onto consider whether the 1998 will/agreement was the product of undue influence.
In particular, the court had to consider which test of undue influence applied. Was it the one relevant to “testamentary” undue influence where the person challenging the will bears the burden of proving undue influence, or the one relevant to inter vivos (or lifetime) undue influence, where once the relevant grounds for setting up an undue influence claim have been established, it is the beneficiary of the gift who bears the burden of proving that it was not the product of undue influence.
Inter vivos undue influence is relevant where there is a relationship of trust and confidence between two parties of which the person who has a measure of influence or ascendency over the other takes unfair advantage. As the judge said: “Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant’s financial affairs coupled with a transaction which called for an explanation would normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof”.
A transaction calling for an explanation is one which “cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship and all the circumstances of the case”.
Because a mutual wills agreement is first and foremost a contract which is made during the lifetime of the parties, the judge decided that it was the law relating to inter vivos undue influence which applied. In that context the judge went on to conclude that the mutual wills had been the product of undue influence notwithstanding the fact that the Dr and Mrs Naidoo had received some advice from a solicitor at the time. In 1998, Dr and Mrs Naidoo were in a vulnerable position. Dr Naidoo was extremely unwell. Mr Barton had been operating the family business for some time and they had given him full power of attorney to deal with at least some of their affairs. Interestingly, Mr Barton could only attend the hearing remotely as he was serving a 17-year prison sentence for four counts of conspiracy to defraud! On this basis the judge ordered that the later 2015 will should be admitted to probate.
The creation of mutual wills can often cause problems down the line because after the death of the first to die there may be significant changes in circumstances which could not have been predicted at the time of the making of the wills. In most cases therefore they are probably best avoided. There is no similar problem with mirror wills.
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