Mutual wills and undue influence

Naidoo v Barton [2023] EWHC 500 (Ch)

Hugh Cumber

It is typically easier to prove undue influence in relation to lifetime transactions than it is to prove testamentary undue influence. In particular, lifetime undue influence benefits from the presumption identified in a number of cases including notably the decision of the Court of Appeal in RBS v Etridge [2002] 2 AC 773. This is the presumption that where there exists a relationship of trust and confidence (sometimes referred to as a relationship of "influence" or a relationship of "ascendancy") and a transaction arises which calls for an explanation, then an evidential presumption arises that the transaction in question was procured by undue influence, with the consequence that the burden falls on the alleged influencer to displace that presumption.