Of Bad Character: Undue Influence Claim Succeeds

Katie de Swarte

Naidoo v Barton: undue influence and the risks of mutual wills

Can someone’s bad character be used to prove a will was procured by undue influence? A recent decision is a textbook illustration of how a person’s conduct, ranging from criminal conduct to his general demeanour in court, resulted in a will being overturned.

The wills dispute solicitors at Osbornes Law regularly advise the parties on either side of contested wills. The team is highly experienced in helping to resolve the issues without expensive litigation.

What’s the background?

Mr and Mrs Naidoo were a wealthy couple who made joint wills in 1998. Mr Naidoo sadly died the following year. They had several children, but just one of them – David Barton – was appointed sole beneficiary and executor on the survivor’s death.

In 2018, Barton was sentenced to a lengthy prison term for fraudulent calumny against wealthy care home residents. (He was also subject to a restraining order preventing him from disposing of, or devaluing his assets).

Unusually, the Naidoo’s wills were ‘mutual wills’ rather than mirror wills. Married couples typically opt for mirror wills which are essentially identical in terms. Typically, they leave their estates to each other, then to their children on the survivor’s death.

Mutual wills are almost the same as mirror wills, however, they also contain an agreement not to change or revoke the will without the other party’s consent, or after one of them dies. Mutual wills are not usually recommended unless there is an explicit reason for them.

Despite the 1998 wills being mutual wills, Mrs Naidoo made another will in 2015 appointing a different son (Charan) as her sole executor and beneficiary. She died a few months later and, needless to say, Barton was not happy to discover she had made a new will cutting him out.

Charan asked the court to rescind the 1998 will on grounds of his parents’ mistaken belief that the survivor would be free to alter their will; and on grounds of undue influence on Barton’s part.

The ‘mistake’ claim failed as Mrs Naidoo knew she would be permanently bound to the terms of the 1998 will. However, the judge ruled that it should be rescinded on the basis of undue influence.

Relevance of character

The judge said Barton’s conviction was “highly relevant”: he had used “sophisticated legal devices, including wills, contracts, spurious gifts, loans of transfers of land and other property to enrich himself at the expense of vulnerable persons who placed their trust in him and were… in his power”.

This “shows evidence of character, propensity, and ability to behave in the way described… and substantially undermines his credibility as a witness.” Furthermore, there was no evidence of a change in character.

The judge found Barton to be a charming man when he wanted to be, but when giving evidence he came across as narcissistic at times, with a degree of grandiosity and revealing a cold and ruthless streak. Any financial or other difficulties were, for instance, always somebody else’s fault entirely.

So how was this relevant to the 1998 mutual wills? Mr and Mrs Naidoo had been highly vulnerable at the time and relied on what the judge described as a “profound relationship of trust in and dependency on” Barton. He was responsible for his parent’s instructions for mutual wills – the effect of which was to leave the survivor “locked in” to having to trust Barton after the first of them died.

Only Barton would benefit from that, and his mother was afraid of him and “at his mercy”.

Legal advice is not enough

One argument put forward by Barton was that he and his parents had relied on independent legal advice in relation to the mutual wills. The judge gave this short shrift: “The mere fact that legal advice is obtained cannot suffice unless it is proper to infer that it must have led to a decision based upon full, free and informed thought”.

He found it unlikely that any independent legal advice, however competent and forceful, could have freed Mrs Naidoo from her vulnerability and Barton’s influence.

How we can help

The contentious wills and probate lawyers at Osbornes are highly experienced in will disputes involving claims of undue influence. Get in touch for robust advice and representation by calling 020 7485 8811.