Abbey National Plc v Tufts: CA 16 Feb 1999

A bankrupt husband, a mortgage broker, had applied for mortgage for his wife, fraudulently claiming that she had income. She appealed against an order for possession on the basis that he was agent of the bank, and that therefore the bank was fixed with notice of the fraud. She claimed that she had operated under the undue influence of her husband, and that, again, the bank was fixed with notice. That the husband was the agent of the bank was rejected. No equitable right arose because she was herself party to the fraud. The section dealt with issues of title, not lending decision. The appeal was dismissed.

Gazette 24-Feb-1999, [1999] EWCA Civ 794
Law of Property Act 1925 199 (1) (ii) (a
England and Wales
Citing:
CitedRe Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .
CitedQuennell v Maltby CA 15-Nov-1978
A house was mortgaged to a bank. The house was then let to tenants at an annual rate of andpound;1,000. The tenants were protected as against the mortgagor by the Rent Acts. The tenancy was not binding on the bank. The mortgagor’s wife took a . .

Lists of cited by and citing cases may be incomplete.

Agency, Undue Influence, Banking, Equity

Updated: 29 November 2021; Ref: scu.145709

O’Sullivan v Management Agency and Music Limited: CA 1985

The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the rescission of contracts for misrepresentation or mistake, and did not apply to equitable relief where contracts had been entered into as the result of undue influence.’
Held: Rescission might still be granted if practical justice can be achieved. Agreements obtained by undue influence were set aside even though the parties could not be restored to their original positions.
Dunn LJ said: ‘If the case had to be decided according to the principles of the common law, it might have been argued that at the date when the respondent issued his writ he was not entitled to rescind the purchase, because he was not then in a position to return to the appellant in specie that which he had received under the contract, in the same plight as that in which he had received it: Clarke v. Dickson, E.B. and E. 148. But it is necessary here to apply the doctrine of equity, and equity has always regarded as valid the disaffirmance of a contract induced by fraud even though precise restitutio in integrum is not possible, if the situation is such that, by the exercise of its powers, including the power to take accounts of profits and to direct inquiries as to allowances proper to be made for deterioration, it can do what is practically just between the parties, and by so doing restore them substantially to the status quo: Erlanger v. New Sombrero Phosphate Co., 3 App.Cas. 1218, at pp.1278, 1279, Brown v. Smith (1924) 34 C.L.R. 160, 165,169; Spence v.Crawford [1939] 3 All E.R. 271, 279, 280. It is not that equity asserts a power by its decree to avoid a contract which the defrauded party himself has no right to disaffirm, and to revest property the title to which the party cannot affect. Rescission for misrepresentation is always the act of the party himself: Reese River Silver Mining Co. Ltd. (Directors of the) v. Smith (1869) L.R. 4 H.L. 64, 73. The function of a court in which proceedings for rescission are taken is to adjudicate upon the validity of a purported disaffirmance as an act avoiding the transaction ab initio, and, if it is valid, to give effect to it and make appropriate consequential orders: see Abram Steamship Co. Ltd. v. Westville Shipping Co. Ltd. [1923] A.C. 773. The difference between the legal and the equitable rules on the subject simply was that equity, having means which the common law lacked to ascertain and provide for the adjustments necessary to be made between the parties in cases where a simple handing back of property or repayment of money would not put them in as good a position as before they entered into their transaction, was able to see the possibility of restitution in integrum, and therefore to concede the right of a defrauded party to rescind, in a much wider variety of cases than those which the common law could recognise as admitting of rescission. Of course, a rescission which the common law courts would not accept as valid cannot of its own force revest the legal title to property which had passed, but if a court of equity would treat it as effectual the equitable title to such property revests upon the rescission.’ and ‘This analysis of the authorities shows that the principle of restitutio in integrum is not applied with its full rigour in equity in relation to transactions entered into by persons in breach of a fiduciary relationship, and that such transactions may be set aside even though it is impossible to place the parties precisely in the position in which they were before, provided that the court can achieve practical justice between the parties by obliging the wrongdoer to give up his profits and advantages, while at the same time compensating him for any work that he has actually performed pursuant to the transaction.’
Fox LJ said: ‘Accordingly, it seems to me that the principle that the court will do what is practically just as between the parties is applicable to a case of undue influence even though the parties cannot be restored to their original position. That is, in my view, applicable to the present case. The question is not whether the parties can be restored to their original position; it is what does the justice of the case require? That approach is quite wide enough, if it be necessary in the individual case, to accommodate the protection of third parties. The rights of a bona fide purchaser for value without notice would not in any event be affected’.

Dunn LJ, Fox LJ
[1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351
Citing:
ApprovedAlati v Kruger 29-Nov-1955
(High Court of Australia) The remedy of rescission is only available if the parties can be returned to their respective positions before the contract was made. Dixon CJ said: ‘It is not that equity asserts a power by its decree to avoid a contract . .

Cited by:
CitedHalpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
CitedFiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
CitedHalpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .

Lists of cited by and citing cases may be incomplete.

Contract, Undue influence, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.244663

Daniel v Drew: CA 6 May 2005

The Aunt had succeeded in her claim that her retirement from a family trust of a farm had been procured by the undue influence of her nephew. The nephew now appealed. She had assigned her interest to her son, who then fell into disagreement about the rent to be paid by the farm to the trust, and about repairs. The appellant contrived a visit to the aunt, and persuaded her to sign a form to resign as trustee there and then after threatening her with court proceedings. She was 85. The form was not by deed and was invalid. He returned, gained admission and the execution of a deed, but misrepresented its contents.
Held: The appeal failed. This was is anything a case of express undue influence. To be undue influence: ‘The donor may be led but she must not be driven and her will must be the offspring of her own volition, not a record of someone else’s. There is no undue influence unless the donor if she were free and informed could say ‘This is not my wish but I must do it’.’ It was not clear that a threat of legal proceedings which was not unlawful might establish undue influence, but it can do so in appropriate circumstances. The defendant had no prospect of overturning the judge’s decision. As to the two classes of undue influence: ‘the difference between the two classes is that in the case of actual undue influence something has to be done to twist the mind of the donor whereas in cases of presumed undue influence it is more a case of what has not been done namely ensuring that independent advice is available to the donor.’

Ward LJ
[2005] EWCA Civ 507, Times 18-May-2005
Bailii
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedHuguenin v Baseley 1807
When undue influence is alleged, the law will investigate the way the intention to enter into the transaction was secured. Lord Eldon LC said: ‘Take it that she (the plaintiff) intended to give it to him (the defendant): it is by no means out of the . .

Cited by:
CitedHewett v First Plus Financial Group Plc CA 24-Mar-2010
The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, . .

Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 11 November 2021; Ref: scu.224789

Schrader v Schrader: ChD 11 Mar 2013

Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the preparation of the later will was shown to be false by the amendments in his handwriting to the draft. There was no irrationality on the face of the will so as to remove the presumption that she had capacity, and indeed the evidence supported that. The evidence was that she understood knew what she was doing and its effect, and therefore. It could not be criticised a being executed with want of knowledge and approval.
As to undue influence: ‘It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. The present case has those characteristics. The allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger, on normal principles. ‘ The undue influence was found to be proved: ‘Nick was instrumental in sowing in his mother’s mind the desirability of his having the house, and in doing so he took advantage of her vulnerability. It is not possible to determine any more than that the precise form of the pressure, or its occasion or occasions, but it is not necessary to do so. I am satisfied that this will results from some form of undue influence.’

Mann J
[2013] EWHC 466 (Ch)
Bailii
England and Wales
Citing:
CitedBanks v Goodfellow QBD 1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedRe Loxston, Abbot v Richardson ChD 2006
Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
CitedWharton v Bancroft and Others ChD 30-Jan-2012
The will was challenged for want of knowledge and approval of it by the testatrix.
Held: Norris J set out the correct approach: ‘(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting . .
CitedEdwards v Edwards and others ChD 3-May-2007
A son of the deceased alleged that his brother had used his undue influence over their mother to persuade her to change her will to exclude him from it.
Held: Lewison J set out the correct approach to an allegation of undue influence, saying: . .
CitedGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 11 November 2021; Ref: scu.471578

Barclay’s Bank Plc v Varenka Goff: CA 3 May 2001

The respondent executed an all monies charge over her property to secure the liability of companies in which she had no direct interest. The bank insisted that she employ solicitors to give her independent advice. The bank sought to enforce its security, and she claimed it was signed under undue influence, of which the bank was fixed with constructive notice. The bank appealed successfully against the order setting aside the charge. Although the bank were fixed with constructive notice of the undue influence, the employment of the independent solicitor was sufficient to discharge that constructive notice. That was only disapplied where no competent solicitor could have advised the wife to enter into the transaction, and that did not apply in this case.

Lord Justice Pill, Lord Justice Mantell, and Lord Justice Buxton
Gazette 17-May-2001, [2001] EWCA Civ 635, [2001] Lloyds Rep Bank 189, [2001] NPC 88, [2001] 2 All ER (Comm) 847
Bailii
England and Wales
Citing:
Disapproved in part (at 705)Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedMidland Bank Plc v Kidwai and Another CA 5-Jun-1995
A bank was not under a full duty to advise a wife of a business client of the risks of signing a charge. The bank was not giving independent advice. . .
CitedPortman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking, Legal Professions

Updated: 09 November 2021; Ref: scu.147528

Re Coomber, Coomber v Coomber: ChD 1911

A father had been assisted in his business by his second son. After the father’s death, the mother transferred the business assets to that second son. After her death, the elder son sought the transfer of those assets back into her estate, saying that in the absence of her having taken independent advice, the younger son’s position brought an implication of undue influence.
Held: The mother’s actions were adequately explained by her wish to do what she thought her husband would have wanted.
Fletcher Moulton LJ summarised the general rules applicable to cases of persons who are competent to form an opinion of their own: ‘All that is necessary is that some independent person, free from any taint of the relationship, or of the consideration of interest which would affect the act, should put clearly before the person what are the nature and the consequences of the act. It is for adult persons of competent mind to decide whether they will do an act, and I do not think that independent and competent advice means independent and competent approval. It simply means that the advice shall be removed entirely from the suspected atmosphere; and that from the clear language of an independent mind, they should know precisely what they are doing.’
and ‘It is possible that there might have been a transaction between the son and the mother, with regard to a purchase of this leasehold property, in which the son would have had to shew that he had given her full information in every possible way as to the value. But in this case the gift was not based on value in any way at all. The mother knew the house, she had lived in it for twenty years, and knew the son was managing it. She meant it to go to the son whatever its value was . .’

Neville J, Fletcher Moulton L
[1911] 1 Ch 174
England and Wales
Citing:
Appealed toRe Coomber; Coomber v Coomber CA 2-Jan-1911
The Coomber family sold beer in Battersea. Coomber Senior had increasingly relied on his second son. After his father’s death, the second son continued to run the business. His mother shortly afterwards assigned both the licence and the premises to . .

Cited by:
Appeal fromRe Coomber; Coomber v Coomber CA 2-Jan-1911
The Coomber family sold beer in Battersea. Coomber Senior had increasingly relied on his second son. After his father’s death, the second son continued to run the business. His mother shortly afterwards assigned both the licence and the premises to . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Undue Influence

Leading Case

Updated: 09 November 2021; Ref: scu.222821

Turnbull and Co v Duval: PC 1902

Mr Duval owed three separate sums to a firm Turnbull and Co including andpound;1,000 owed to the Jamaican branch for beer. Turnbulls’ manager and agent in Jamaica was a Mr Campbell. Mr Campbell was also an executor and trustee of a will under which Mrs Duval had a beneficial interest. Mr Campbell threatened to stop supplying beer to Mr Duval unless security was given for the debts owed and, with Mr Campbell’s knowledge, a document was prepared under which Mrs Duval charged her beneficial interest under the will to secure the payment of all debts owed by Mr Duval to Turnbull i.e. not only the money owed for beer but all the debts. Mr Duval put pressure on Mrs Duval to sign the document. She was under the impression that the document was to secure the beer debt only.
Held: A transaction may be set aside for misrepresentation or undue influence whether it was procured by the misrepresentation or undue influence of the party seeking to uphold the transaction or that of a third party.
Lord Lindley: ‘In the face of such evidence, their Lordships are of opinion that it is quite impossible to uphold the security given by Mrs. Duval. It is open to the double objection of having been obtained by a trustee from his cestui que trust by pressure through her husband and without independent advice, and of having been obtained by a husband from his wife by pressure and concealment of material facts. Whether the security could be upheld if the only ground for impeaching it was that Mrs. Duval had no independent advice has not really to be determined. Their Lordships are not prepared to say it could not. But there is an additional and even stronger ground for impeaching it. It is, in their Lordships’ opinion, quite clear that Mrs. Duval was pressed by her husband to sign, and did sign, the document, which was very different from what she supposed it to be, and a document of the true nature of which she had no conception. It is impossible to hold that Campbell or Turnbull and Co. are unaffected by such pressure and ignorance. They left everything to Duval, and must abide the consequences.’

Lord Lindley
[1902] AC 429
England and Wales
Cited by:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

Lists of cited by and citing cases may be incomplete.

Contract, Undue Influence

Leading Case

Updated: 02 November 2021; Ref: scu.180580

Brown v Stephenson: ChD 23 Aug 2013

The claimant sought to have set aside transfers and declarations of trust made by her in the defendant’s favour, saying that they had been given under his undue influence taking advantage of her dyslexia, and by bullying.
Held: The claims of undue influence were not made out, and the documents were upheld. The claimant had receive proper professional support and advice when entering into the transactions.

Behrens J
[2013] EWHC 2531 (Ch)
Bailii
England and Wales
Citing:
CitedBainbrigge v Browne ChD 1881
Bainbrigge_BrowneChD1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedBank of Montreal v Stuart PC 1911
The court used the phrase ‘immoderate and irrational’ to describe the character of a transaction which might of its nature suggest undue influence. A solicitor who is advising a client about a transaction and has reason to suspect that the client is . .
CitedGoldsworthy v Brickell CA 1987
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some . .
CitedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedSmith v Cooper and Another CA 25-Jun-2010
The Court set out the test for where to set aside a transaction after a finding of undue influence: ‘[where] the presumption of undue influence applies, that is to say, the court will presume that the transaction was procured by undue influence . .

Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 02 November 2021; Ref: scu.514976

Edwards v Edwards and others: ChD 3 May 2007

A son of the deceased alleged that his brother had used his undue influence over their mother to persuade her to change her will to exclude him from it.
Held: Lewison J set out the correct approach to an allegation of undue influence, saying: ‘There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will;
vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is ‘fraudulent calumny’. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;
ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent. ‘

Lewison J
[2007] EWHC 1119 (Ch), [2007] WTLR 1387
Bailii
England and Wales
Cited by:
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedSchrader v Schrader ChD 11-Mar-2013
Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 02 November 2021; Ref: scu.252552

Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc: HL 11 Oct 2001

Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of one person over the will of another, though it should not always be presumed to arise from the existence of certain close relationships. A bank should be put on enquiry whenever a wife gives security for her husband’s debts, even where she may be jointly liable, or is a director. The independent advice given has often been superficial. The bank should take reasonable steps to satisfy itself that the wife has had brought home to her the practical implications of the proposed transaction. The solicitor should ensure that the wife properly understands the documentation and risks. He should explain that his involvement may mean that she cannot later challenge the charge. The advice should be given face to face, and in the absence of the husband. Provided the solicitor feels he can properly represent her interests, he may also act for the husband. The decision must be hers.
The court listed other steps to be taken by the bank and by the solicitors.
Lord Nicholls said: ‘Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. To this end the common law developed a principle of duress. Originally this was narrow in its scope, restricted to the more blatant forms of physical coercion, such as personal violence. Here, as elsewhere in the law, equity supplemented the common law. Equity extended the reach of the law to other unacceptable forms of persuasion.’ and
‘the high degree of trust and confidence and emotional interdependence which normally characterises a marriage relationship provides scope for abuse. One party may take advantage of the other’s vulnerability. Unhappily, such abuse does occur. Further, it is all too easy for a husband, anxious or even desperate for bank finance, to misstate the position in some particular or to mislead the wife, wittingly or unwittingly, in some other way. The law would be seriously defective if it did not recognise these realities.’

Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Clyde Lord Hobhouse of Wood-borough Lord Scott of Foscote
Times 17-Oct-2001, [2001] UKHL 44, [2001] 3 WLR 1021, [2002] 2 AC 773, [2002] HLR 4, [2002] 1 Lloyd’s Rep 343, [2001] NPC 147, [2001] Fam Law 880, [2001] 43 EGCS 184, [2001] 2 All ER (Comm) 1061, [2001] 4 All ER 449, [2001] 2 FLR 1364, [2002] 1 P and CR DG14, [2001] 3 FCR 481
House of Lords, Bailii
England and Wales
Citing:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
DisapprovedRoyal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedHuguenin v Baseley 1807
When undue influence is alleged, the law will investigate the way the intention to enter into the transaction was secured. Lord Eldon LC said: ‘Take it that she (the plaintiff) intended to give it to him (the defendant): it is by no means out of the . .
CitedBainbrigge v Browne ChD 1881
Bainbrigge_BrowneChD1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedNational Westminster Bank plc v Morgan HL 7-Mar-1985
Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedZamet v Hyman CA 1961
In considering a claim of undue influence the court referred to relationships where one party owed the other an obligation of candour and protection. A presumption of undue influence arose only where it is proved that the gift was made by the donor . .
CitedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
CitedRoyal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedBank of Montreal v Stuart PC 1911
The court used the phrase ‘immoderate and irrational’ to describe the character of a transaction which might of its nature suggest undue influence. A solicitor who is advising a client about a transaction and has reason to suspect that the client is . .
Appeal fromBarclays Bank Plc v Coleman and Others CA 5-Jan-2000
It is still the case that a claimant, arguing for a charge to be set aside for undue influence must show some manifest and clear disadvantage arising from the charge. This may be subject to change in the future, but still applies now. A document . .
CitedIn re Lloyds Bank Ltd, Bomze v Bomze 1931
Where there is evidence that a husband has taken unfair advantage of his influence over his wife, or her confidence in him, ‘it is not difficult for the wife to establish her title to relief.’ . .
CitedMassey v Midland Bank Plc CA 1995
Where a woman executes a mortgage charging her property in favour of the bank to secure her partner’s debts, the bank is fixed with notice of the possibility of undue influence. It was not necessary that the couple should be married or cohabit. . .
CitedCobbett v Brock CA 1855
Knowledge of the undue influence of a husband over his wife in securing her signature to a charge is required before a lender is bound by that undue influence. . .
CitedRe Coomber, Coomber v Coomber ChD 1911
A father had been assisted in his business by his second son. After the father’s death, the mother transferred the business assets to that second son. After her death, the elder son sought the transfer of those assets back into her estate, saying . .
CitedCredit Lyonnais Bank Nederland NV v Burch CA 1-Jul-1996
A Bank was to assume that undue influence existed where they knew that an employee was giving security for his employer’s debt to the bank. An unlimited guarantee given by an employee to his employer’s bank was set aside as unconscionable. The . .
CitedBank of Baroda v Rayarel and Others CA 19-Jan-1995
A bank may assume that a solicitor advising a customer’s wife had acted properly. The solicitors acted for both the husband and the wife before they also gave their instructions to the solicitors. . .
CitedInche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .
CitedSmith v Governor and Company of The Bank of Scotland HL 6-Feb-1997
A bank which did not warn its customer of the of risks of a loan and of the need for independent advice was bound by misrepresentations made by customer. The House referred to ‘the broad principle in the field of contract law of fair dealing in good . .
CitedIn re Craig, Decd 1971
Undue influence was found to have been exercised by a secretary companion over her elderly employer. . .
CitedTurnbull and Co v Duval PC 1902
Mr Duval owed three separate sums to a firm Turnbull and Co including andpound;1,000 owed to the Jamaican branch for beer. Turnbulls’ manager and agent in Jamaica was a Mr Campbell. Mr Campbell was also an executor and trustee of a will under which . .
CitedWatt or Forsyth (Assisted Person) v the Royal Bank of Scotland Plc SCS 26-Jul-1999
It appeared to the creditor that the wife had already had the benefit of professional legal advice, and it did not recommend that she should seek independent legal advice. . .
CitedBanco Exterior Internacional SA (Formerly Banco Exterior – UK a Limited Liability Company Incorporated Under the Laws of Spain) v Thomas and Barry the Executors of Patricia Dempsey CA 31-Jul-1996
The bank sought to enforce a guarantee against the estate of the deceased guarantor. The executors alleged undue influence. The bank appealed.
Held: Where the other contracting party had had actual knowledge of the undue influence or . .
CitedCommission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
CitedKenyon-Brown v Desmond Banks and Co 2000
. .
CitedHamilton v Watson 1845
Although a would-be surety is, in general, expected to acquaint himself with the risk he is undertaking, the creditor is under an obligation to disclose to the intending surety ‘anything which might not naturally be expected to take place between . .
CitedSeaton v Heath CA 1899
A suretyship contract is not a contract uberrimae fidei. Romer LJ said: ‘The risk undertaken is generally known to the surety and the circumstances generally point to the view that as between the creditor and surety it was contemplated and intended . .
CitedBanco Exterior Internacional v Mann and Others CA 19-Dec-1994
A charge to secure a husband’s borrowings was enforceable where the wife’s signature had been taken before a solicitor who had explained it. Hobhouse LJ (dissenting) ‘It must be remembered that the starting point of this exercise is that the wife’s . .
CitedLondon General Omnibus Co Ltd v Holloway 1912
Lee was employed by the bus company in a position which involved receiving money on their behalf. The bus company required him to obtain a fidelity bond from a third party. The bond was given by Holloway, a relative of Lee, without either the bus . .
Appeal fromGovernor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998
The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been . .
CitedPooraka Holdings Pty Ltd v Participation Nominees Pty Ltd 1991
The court considered the creditor’s duty of disclosure to a surety.
Held: The duty of disclosure extends to any unusual feature surrounding the transaction between the creditor and the surety (a) of which the creditor is or ought to be aware, . .
ApprovedGovernor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .

Cited by:
CitedNational Westminster Bank Plc v Amin and Another HL 28-Feb-2002
The respondents resisted an application for possession of their property by the bank. They claimed undue influence, and that because of an inability to speak English, the charge should be avoided. They appealed an order striking out their defence . .
CitedU v Centre for Reproductive Medicine CA 24-Apr-2002
The claimant appealed a refusal to grant an order preventing the destruction of the sperm of her late husband held by the respondent fertility clinic. The clinic had persuaded her husband to sign a form of consent for this purpose. The claimant said . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
CitedPadgham and another v Rochelle and another ChD 1-Aug-2002
The testator occupied farmland and buildings. He was helped in maintaining the farm by his son, but gave the land to his grandchildren by his will. The son claimed to have been granted an informal written agricultural tenancy by his father before . .
CitedFranklyn Dailey v Harriet Dailey PC 2-Oct-2003
PC (British Virgin Islands) The husband and wife had developed a business together. Transfers between the parties had taken place and there were suspicions about misappropriation of money.
Held: The . .
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedSandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
CitedNiersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
CitedVale v Armstrong, Armstrong ChD 21-May-2004
The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The . .
CitedYorkshire Bank Plc v Tinsley CA 25-Jun-2004
The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced . .
CitedAnthony Papouis v Valerie Gibson-West ChD 4-Mar-2004
The deceased had purchased her flat using the discount available as a tenant, and money contributed by the defendant. A deed of trust had been executed, which the claimant now asserted had been obtained by undue influence.
Held: The principles . .
CitedR v Her Majesty’s Attorney-General for England and Wales PC 17-Mar-2003
PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R . .
CitedDaniel v Drew CA 6-May-2005
The Aunt had succeeded in her claim that her retirement from a family trust of a farm had been procured by the undue influence of her nephew. The nephew now appealed. She had assigned her interest to her son, who then fell into disagreement about . .
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedBowser v Caley and others ChD 16-Mar-2006
The claimant alleged that the transfer by him of his land to his sister and her husband had been obtained by any of several wrongful means and should be set aside.
Held: The allegations of undue influence failed. The claimant did not establish . .
CitedHalpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedHalpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
CitedDe Wind v Wedge ChD 19-Mar-2008
Brother and sister contested the devolution of their mother’s house. The sister had fallen into debt and been given much financial assistance by other members of the family. The brother said that to rebalance that, the mother had given the house to . .
CitedGoodchild v Branbury and others CA 15-Dec-2006
Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is . .
CitedGreene King Plc v Stanley and others CA 30-Nov-2001
The claimant challenged an order that the two defendant chargors were discharged from liability to the claimants under their individual voluntary arrangement and on the basis that it had been entered under undue influence. . .
CitedHewett v First Plus Financial Group Plc CA 24-Mar-2010
The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, . .
CitedLink Lending Ltd v Bustard CA 23-Apr-2010
The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had . .
CitedBrown v Stephenson ChD 23-Aug-2013
The claimant sought to have set aside transfers and declarations of trust made by her in the defendant’s favour, saying that they had been given under his undue influence taking advantage of her dyslexia, and by bullying.
Held: The claims of . .
CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .

Lists of cited by and citing cases may be incomplete.

Banking, Legal Professions, Undue Influence, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.166567

Cowderoy v Cranfield: ChD 24 Jun 2011

cowderoy_cranfieldChD2011

The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the Court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation’

Morgan J
[2011] EWHC 1616 (Ch)
Bailii
Cited by:
Principal judgmentCowderoy v Cranfield ChD 13-Oct-2011
. .
CitedWharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 01 November 2021; Ref: scu.441216

Marsh v Tyrrell: 1828

Revocation of Earlier Will needs Knowleedge

The testatrix was found to have made a new Will, at a time when her faculties were much impaired, under the undue influence of her husband, who under that Will took her estate absolutely subject only to some small legacies, whereas under the previous Will of the testatrix the principal objects of her bounty were quite different.
Held: To successfully revoke a former will by a new Will it was necessary to prove that the testatrix recollected the general contents of the previous Will.

Sir John Nicholl
(1828) 2 Hagg Ecc 84
England and Wales
Cited by:
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 01 November 2021; Ref: scu.219626

Hewett v First Plus Financial Group Plc: CA 24 Mar 2010

The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, and knew that the primary purpose of the loan was to repay the husband’s credit card debts.
Held: A finding of undue influence does not depend, as a necessary pre-requisite, upon a conclusion that the victim made no decision of her own, or that her will and intention was completely overborne. In this case the appellant had placed a sufficient level of trust and confidence in her husband or a duty to arise toward her, and the husband’s affair was a fact material to the wife’s decision. Briggs LJ said: ‘The right to set aside the transaction arises not because, on a but for causation analysis, it would otherwise have been avoided, but because of the equitable wrong constituted by the abuse of confidence was part of the process by which the victim’s consent to it was obtained.’ The appellant’s decision was vitiated by the abuse of her trust.

Jacob, Leveson, Briggs, LJJ
[2010] EWCA Civ 312
Bailii
England and Wales
Citing:
CitedHuguenin v Baseley 1807
When undue influence is alleged, the law will investigate the way the intention to enter into the transaction was secured. Lord Eldon LC said: ‘Take it that she (the plaintiff) intended to give it to him (the defendant): it is by no means out of the . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedDaniel v Drew CA 6-May-2005
The Aunt had succeeded in her claim that her retirement from a family trust of a farm had been procured by the undue influence of her nephew. The nephew now appealed. She had assigned her interest to her son, who then fell into disagreement about . .
CitedThompson v Foy ChD 20-May-2009
Lewison J discussed the decision in Etridge: ‘In the light of the arguments before me, there are some additional observations I should make. First, although in Etridge Lord Nicholls of Birkenhead described the paradigm case of a relationship where . .
CitedThe Royal Bank of Scotland Plc v Chandra and Another ChD 28-Jan-2010
The bank sought to enforce guarantees supported by a charge on the defendants home. They said that the bank had by its actions in supporting further development of a project, released them from obligations to it.
Held: David Richards J . .

Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 01 November 2021; Ref: scu.406411

Allcard v Skinner: CA 1887

The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to support the gift if it is so large as not to be reasonably accounted for on the ground of the relationship: Cotton LJ said: ‘the court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which exist between the parties and the influence arising therefrom being abused.’
Lindley LJ said: ‘But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift.’

Bowen LJ The gifts should be set aside ‘unless it is shewn that the donor, at the time of making the gift, was allowed full and free opportunity for counsel and advice outside – the means of considering his or her worldly position and exercising an independent will about it.’ and ‘This is not a limitation placed on the action of the donor; it is a fetter placed upon the conscience of the recipient of the gift, and one which arises out of public policy and fair play.’

Lindley LJ ‘As no Court has ever attempted to define fraud so no Court has ever attempted to define undue influence, which includes one of its many varieties.’ He set out a first class of case: ‘There are the cases in which there has been some unfair and improper conduct, some coercion from outside, some over-reaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor.’ ‘In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.’ and ‘The [the courts of Equity] have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible. The courts have required proof of its non-exercise, and failing that proof, have set aside gifts otherwise unimpeachable.’ The mere existence of the influence is not enough: ‘But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift.’

Lindley LJ, Cotton LJ, Bowen LJ
(1887) 36 Ch D 145
England and Wales
Citing:
CitedHuguenin v Baseley 1807
When undue influence is alleged, the law will investigate the way the intention to enter into the transaction was secured. Lord Eldon LC said: ‘Take it that she (the plaintiff) intended to give it to him (the defendant): it is by no means out of the . .

Cited by:
CitedFranklyn Dailey v Harriet Dailey PC 2-Oct-2003
PC (British Virgin Islands) The husband and wife had developed a business together. Transfers between the parties had taken place and there were suspicions about misappropriation of money.
Held: The . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
CitedNiersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
CitedR v Her Majesty’s Attorney-General for England and Wales PC 17-Mar-2003
PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedDaniel v Drew CA 6-May-2005
The Aunt had succeeded in her claim that her retirement from a family trust of a farm had been procured by the undue influence of her nephew. The nephew now appealed. She had assigned her interest to her son, who then fell into disagreement about . .
CitedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedBarraclough v Mell and others ChD 1-Dec-2005
Moneys due under a will had been misdistributed. The correct beneficiary sought repayment. The executor sought to rely upon a trustee exemption clause.
Held: the tustee exemption clause was effective to protect the executor as such. She had . .
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedHewett v First Plus Financial Group Plc CA 24-Mar-2010
The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, . .
CitedThompson v Foy ChD 20-May-2009
Lewison J discussed the decision in Etridge: ‘In the light of the arguments before me, there are some additional observations I should make. First, although in Etridge Lord Nicholls of Birkenhead described the paradigm case of a relationship where . .
CitedBrown v Stephenson ChD 23-Aug-2013
The claimant sought to have set aside transfers and declarations of trust made by her in the defendant’s favour, saying that they had been given under his undue influence taking advantage of her dyslexia, and by bullying.
Held: The claims of . .

Lists of cited by and citing cases may be incomplete.

Undue Influence

Leading Case

Updated: 01 November 2021; Ref: scu.187138

Barclays Bank Plc v O’Brien and Another: HL 21 Oct 1993

The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Held: The charge was not to be enforced. The bank was under constructive notice, and ought to have known of the undue influence of the husband. The security was obtained by undue influence or misrepresentation. The House set a low level for the threshold which must be crossed before a bank is put on inquiry.
Lord Browne-Wilkinson: ‘Therefore in my judgment a creditor is put on inquiry when a wife offers to stand surety for her husband’s debts by the combination of two factors: (a) the transaction is on its face not to the financial advantage of the wife; and (b) there is a substantial risk in transactions of that kind that, in procuring the wife to act as surety, the husband has committed a legal or equitable wrong that entitles the wife to set aside the transaction.’ Unconscionable conduct is ‘ some other legal wrong’. ‘if the doctrine of notice is properly applied, there is no need for the introduction of a special equity in these types of cases. A wife who has been induced to stand as a surety for her husband’s debts by his undue influence, misrepresentation or some other legal wrong has an equity as against him to set aside that transaction. Under the ordinary principles of equity, her right to set aside that transaction will be enforceable against third parties (e.g. against a creditor) if either the husband was acting as the third party’s agent or the third party had actual or constructive notice of the facts giving rise to her equity. Although there may be cases where, without artificiality, it can properly be held that the husband was acting as the agent of the creditor in procuring the wife to stand as surety, such cases will be of very rare occurrence. The key to the problem is to identify the circumstances in which the creditor will be taken to have had notice of the wife’s equity to set aside the transaction. The doctrine of notice lies at the heart of equity. Given that there are two innocent parties, each enjoying rights, the earlier right prevails against the later right if the acquirer of the later right knows of the earlier right (actual notice) or would have discovered it had he taken proper steps (constructive notice).’

Lord Templeman, Lord Lowry, Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Woolf
Gazette 17-Dec-1993, Times 22-Oct-1993, Independent 22-Oct-1993, [1993] 3 WLR 786, [1994] 1 AC 180, [1993] 4 All ER 417, [1993] UKHL 6
Bailii
England and Wales
Citing:
CitedAvon Finance Co Ltd v Bridger CA 1985
The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
CitedBainbrigge v Browne ChD 1881
Bainbrigge_BrowneChD1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
CitedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
CitedBank of Montreal v Stuart PC 1911
The court used the phrase ‘immoderate and irrational’ to describe the character of a transaction which might of its nature suggest undue influence. A solicitor who is advising a client about a transaction and has reason to suspect that the client is . .
CitedBank of Victoria Ltd v Mueller 1925
Cussen J opined that a wife was entitled to relief from a guarantee granted to the bank undertaken under pressure from her husband where amongst other matters it could be shown: ‘that the husband in procuring and pressing for such consent . .
CitedBischoff’s Trustee v Frank 1903
. .
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedColdunell Ltd v Gallon CA 1986
Even in the absence of agency, if the debtor has been guilty of undue influence or misrepresentation in securing the giving of security by a third party to cover his debt to the creditor, the creditor may not be able to enforce the surety contract . .
CitedGrigby v Cox 1750
The court considered a claim that the husband had exercised undue influence over his wife.
Held: The court rejected any presumption of undue influence, and said that a court of equity ‘will have more jealousy’ over dispositions by a wife to a . .
CitedHoghton v Hoghton CA 16-Apr-1852
When a person has made a large voluntary disposition the burden is thrown on the party benefitting to show that the disposition was made fairly and honestly and in full understanding of the nature and consequences of the transaction. Romilly MR . .
CitedHowes v Bishop 1909
The relationship of husband and wife does not bring a case within Class 2(A). . .
CitedKings North Trust Ltd v Bell CA 1986
The wife claimed to have signed a legal charge in favour of the plaintiffs by virtue of her husband’s fraudulent misrepresentation. The charge secured the business borrowings of the husband. She did not get independent advice.
Held: The bank . .
CitedMidland Bank Plc v Shephard CA 1988
Setting aside of bank’s charge where execution by a third party to secure the creditors debt had been secured by the creditors misrepresentation of the charge. . .
CitedTurnbull and Co v Duval PC 1902
Mr Duval owed three separate sums to a firm Turnbull and Co including andpound;1,000 owed to the Jamaican branch for beer. Turnbulls’ manager and agent in Jamaica was a Mr Campbell. Mr Campbell was also an executor and trustee of a will under which . .
CitedYerkey v Jones 1939
The relationship of husband and wife is not enough of itself to raise a presumption of undue influence. The Court of Chancery was not blind to the opportunities of obtaining and unfairly using influence over a wife which the husband often possesses. . .
Appeal fromBarclays Bank Plc v O’Brien and Another CA 22-May-1992
A bank leaving a husband to explain a proposed charge over the matrimonial home to his wife to secure his business debts, could not enforce that charge against her. There was a presumption of undue influence in the husband which made the charge . .

Cited by:
CitedCooke v National Westminster Bank Plc; Waldron Wetherell and Co CA 17-Jun-1998
Where a bank had failed to require the solicitors witnessing a wife’s signature to a guarantee, to write to confirm that she had received independent advice, and there had been undue influence, they were deemed to be on notice of such influence. . .
CitedRoyal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedGovernor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998
The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been . .
CitedPortman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedNiersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
CitedBarclays Bank Plc v Boulter and Another HL 26-Oct-1999
The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of . .
CitedScotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedForsdike v Forsdike CA 21-Feb-1997
The claimant appealed dismissal of his claim to set aside a transfer by way of gift by his father on the basis of an alleged undue influence.
Held: The judges was entitled to make the findings he had done, and to be impressed by the spacing of . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedGreene King Plc v Stanley and others CA 30-Nov-2001
The claimant challenged an order that the two defendant chargors were discharged from liability to the claimants under their individual voluntary arrangement and on the basis that it had been entered under undue influence. . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Leading Case

Updated: 31 October 2021; Ref: scu.78210

Hall v Hall: 1868

Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like – these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the freeplay of the testator’s judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened. In a word a testator may be led but not driven and his will must be the off-spring of his own volition and not the record of someone else’s’.
Sir JP Wilde
[1868] LR 1 P and D 481
England and Wales
Cited by:
CitedKillick v Pountney and Another; Re Killick Deceased ChD 31-Mar-1999
Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their . .
CitedThompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
CitedPotter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
CitedIn re Good, deceased; Carapeto v Good and Others ChD 19-Apr-2002
The normal rules as to costs contained in the CPR should also be followed in probate actions save only that the judge should also take account of the guidance in the Spiers case, where an alternative costs order might be made if the testator or . .
CitedArk and Others v Kaur and Others ChD 17-Sep-2010
The proponents sought to have the will (executed in India) admitted to probate. The daughters denied that he had executed it. The court heard detailed explanations of the procedures said to have been undertaken for the making and execution of the . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.188023

Zamet v Hyman: CA 1961

In considering a claim of undue influence the court referred to relationships where one party owed the other an obligation of candour and protection. A presumption of undue influence arose only where it is proved that the gift was made by the donor ‘only after full, free and informed thought about it.’
Lord Evershed MR
[1961] 1 WLR 1442
England and Wales
Cited by:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.224815

Niersmans v Pesticcio: CA 1 Apr 2004

A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue influence. There were continuing misconceptions about the nature of undue influence ‘Although undue influence is sometimes described as an ‘equitable wrong’ or even as a species of equitable fraud, the basis of the court’s intervention is not the commission of a dishonest or wrongful act by the defendant, but that, as a matter of public policy, the presumed influence arising from the relationship of trust and confidence should not operate to the disadvantage of the victim, if the transaction is not satisfactorily explained by ordinary motives.’ The employment of a solicitor may not always guarantee that the transaction is free of undue influence: ‘It is necessary for the court to be satisfied that the advice and explanation by, for example, a solicitor, was relevant and effective to free the donor from the impairment of the influence on his free will and to give him the necessary independence of judgment and freedom to make choices with a full appreciation of what he was doing. ‘
Lord Justice Mummery Lord Justice Pill Lord Justice Jacob
[2004] EWCA Civ 372
Bailii
England and Wales
Citing:
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedInche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .

Cited by:
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.195025

Randall v Randall: ChD 30 Jul 2004

The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been a difficult and eccentric character. In this case the defendant had failed to rebut the evidential presumption of undue influence. Trust and confidence had been placed by the deceased in the defendant, and the transactions called for an explanation which was not given.
Bartley Jones QC
[2004] EWHC 2258 (Ch), [2005] WTLR 119
Bailii
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedNiersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
CitedZamet v Hyman CA 1961
In considering a claim of undue influence the court referred to relationships where one party owed the other an obligation of candour and protection. A presumption of undue influence arose only where it is proved that the gift was made by the donor . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedLangton v Langton and Another ChD 24-Feb-1995
The doctrine of ‘unconscionable bargain’ does not extend to gifts obtained by undue influence. . .
CitedInche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.226175

Goodchild v Branbury and others: CA 15 Dec 2006

Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is made without informed consideration by a person vulnerable to influence, and which he could not have been expected to make if he had been acting in accordance with the ordinary motives which lead men’s actions, needs to be justified on the basis that the donor knew and understood what he was doing. In this case, that requirement was not met.’
Chadwick LJ
[2006] EWCA Civ 1868
Bailii
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedInche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .
CitedJennings and Another v Cairns CA 18-Nov-2003
Nieces had fallen out over their aunt’s estate. One niece had been closer than the others, and despite not properly understanding what she was doing the deceased had made lifetime gifts to the niece who was now executor. She appealed a finding of . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.249100

Inche Noriah v Shaik Allie Bin Omar: PC 1928

Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough to establish that it was almost her entire estate, and had not advised her that a better way to achieve the result would be by will.
Held: The gift failed for undue influence. Usually a presumption of undue influence may be rebutted by showing that the transaction was entered into ‘after the nature and effect of the transaction had been fully explained to the donor by some independent qualified person.’ and: ‘It is necessary for the donee to prove that the gift was the result of a free exercise of independent will.’
However (Lord Hailsham LC): ‘their Lordships are not prepared to accept the view that independent legal advice is the only way in which the presumption can be rebutted.’ and ‘It is necessary for the donee to prove that the gift was a result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely to satisfy the court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there can there are no other circumstances this may be the only means by which the donee can rebut the presumption.’
Lord Hailsham LC
[1929] AC 127, [1928] All ER 189
Cited by:
CitedNiersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedGoodchild v Branbury and others CA 15-Dec-2006
Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.195486

Huguenin v Baseley: 1807

When undue influence is alleged, the law will investigate the way the intention to enter into the transaction was secured. Lord Eldon LC said: ‘Take it that she (the plaintiff) intended to give it to him (the defendant): it is by no means out of the reach of the principle. The question is, not, whether she knew, what she was doing, had done, or proposed to do, but how the intention was produced.’
Lord Eldon LC
[1807] EngR 397, (1807) 14 Ves Jun 273, (1807) 33 ER 526
Commonlii
Cited by:
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedDaniel v Drew CA 6-May-2005
The Aunt had succeeded in her claim that her retirement from a family trust of a farm had been procured by the undue influence of her nephew. The nephew now appealed. She had assigned her interest to her son, who then fell into disagreement about . .
See AlsoHuguenin v Baseley 20-Jul-1808
. .
CitedHewett v First Plus Financial Group Plc CA 24-Mar-2010
The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.196005

Hammond v Osborn and Another: CA 27 Jun 2002

Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a case such as this where the gift created a substantial tax liability, it was incumbent upon the donee to provide evidence that the gift had only been made after full, free and informed thought, and in the absence of such evidence the gift might be set aside. A finding that the gift was spontaneous, and not made in response to pressure and in a full and independent exercise of the donor’s was not enough to rebut the presumption. The presumption is rebutted by proof that the gift was ‘the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the court in holding that the gift was the result of a free exercise of the donor’s will’ (Cotton LJ) The court emphasised the need for proper independent legal advice: ‘Independent advice is thus usually the crucial evidence going to the rebuttal of the presumption.’
Sir Martin Nourse, Lord Justice Ward and Lord Justice Keene
Times 18-Jul-2002, Gazette 05-Sep-2002, [2002] EWCA Civ 885, [2002] WTLR 1125
Bailii
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedHuguenin v Baseley 1807
When undue influence is alleged, the law will investigate the way the intention to enter into the transaction was secured. Lord Eldon LC said: ‘Take it that she (the plaintiff) intended to give it to him (the defendant): it is by no means out of the . .
CitedInche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .
CitedZamet v Hyman CA 1961
In considering a claim of undue influence the court referred to relationships where one party owed the other an obligation of candour and protection. A presumption of undue influence arose only where it is proved that the gift was made by the donor . .

Cited by:
CitedNiersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedGoodchild v Branbury and others CA 15-Dec-2006
Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.174114

Ram and Another v Chauhan and Another: Misc 19 Jul 2017

Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence
Saffmann HHJ
[2017] EW Misc 12 (CC)
Bailii
Wills Act 1837 9
England and Wales
Citing:
CitedBanks v Goodfellow QBD 1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
CitedKey and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
CitedParker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
CitedRe Loxston, Abbot v Richardson ChD 2006
Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
CitedEdwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
CitedPerrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
CitedHawes v Burgess and Another CA 19-Feb-2013
The appellant challenged pronouncement against the validity of wills on the ground of lack of testamentary capacity and want of knowledge and approval.
Mummery LJ said: ‘Although talk of presumptions and their rebuttal is not regarded as . .
CitedSimon v Byford and Others CA 13-Mar-2014
The court was asked whether the testatrix (a) had testamentary capacity and (b) knew and approved the contents of her will when she executed it at or immediately after her 88th birthday party. The judge had answered both those questions in the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.590780

Woolwich Plc v Gomm, Fairbairn: CA 21 Sep 1999

A borrower took out a loan under undue influence. The test of whether the lender was fixed with notice of this was an objective one. The lender was fixed with the knowledge of its agent solicitor, but whether it was so fixed was not dependent upon the terms of the particular appointment of that solicitor agent.
Gazette 08-Sep-1999, Times 21-Sep-1999, [1999] EWCA Civ 1989
Law of Property Act 1925 199
England and Wales

Updated: 09 August 2021; Ref: scu.90603

Erlanger v New Sombrero Phosphate Company: HL 1878

Rescission needs Restitutio in Integrum

A syndicate, of which Erlanger (Orse Erlinger) was the head, purchased from an insolvent company an island, said to contain valuable mines of phosphates. Erlanger, who managed the purchase, prepared to get up a company to take over the island and work the mines. The sale of the island to the company was made nominally by a person who had no real interest in the island.
Held: Erlanger was in a fiduciary position to the company and was obliged to faithfully state to the company the facts which applied to the property and which would influence the company in deciding on the reasonableness of acquiring it. The question was whether the contract should be allowed to stand. It could not be sustained. Where a fiduciary relationship between parties may be the occasion of unfair advantage to one of them, the burden of proof lies on that party to show that he has not used that advantage for his own benefit. The value of depreciation of a phosphate mine could be measured in order to make counter-restitution in equity.
Lord Blackburn said: ‘It is, I think, clear on principles of general justice, that as condition to a rescission there must be a restitutio in integrum. That parties must be put in statu quo. See Lord Cranworth in Addie v The Western Bank. It is a doctrine, which has often been acted upon both at law and in equity. But there is a considerable difference in the mode in which it is applied in Courts of Law and Equity, owing, as I think, to the difference of the machinery which the Courts have at their command. I speak of these Courts as they were at the time when this suit commenced, without inquiring whether the Judicature Acts make any, or if any, what difference.
It would be obviously unjust that a person who has been in possession of property under the contract which he seeks to repudiate should be allowed to throw back on the other party’s hands without accounting for any benefit he may have derived from the use of the property, or if the property, though not destroyed, has been in the interval deteriorated, without making compensation for that deterioration. But as a Court of Law has no machinery at its command for taking an account of such matters, the defrauded party, if he sought his remedy at law, must in such cases keep the property and sue in an action for deceit, in which the jury, if properly directed, can do complete justice by giving as damages a full indemnity for all that the party has lost; see Clarke v Dixon and the cases there cited.
But a Court of Equity could not give damages, and, unless it can rescind the contract, can give no relief. And, on the other hand, it can take accounts of profits, and make allowance for deterioration. And I think the practice has always been for a Court of Equity to give this relief whenever, by the exercise of its powers, it can do what is practically just, though it cannot restore the parties precisely to the state they were in before the contract.’
Lord Penzance said: ‘A contract of sale effected under such circumstances is, I conceive, upon principles of equity liable to be set aside.
The principles of equity to which I refer have been illustrated in a variety of relations, none of them perhaps precisely similar to that of the present parties, but all resting on the same basis, and one which is strictly applicable to the present case. The relations of principal and agent, trustee and cestui que trust, parent and child, guardian and ward, priest and penitent, all furnish instances in which the Courts of Equity have given protection and relief against the pressure of unfair advantage resulting from the relation and mutual position of the parties, whether in matters of contract or gift; and this relation and position of unfair advantage once made apparent, the Courts have always cast upon him who holds that position, the burden of shewing that he has not used it to his own benefit.’
Lord Penzance, Lord Blackburn
(1878) LR 3 App Cas 1218, [1874-80] All ER 271
Contracts (Applicable Law ) Act 1990
England and Wales
Citing:
At CANew Sombrero Phosphate Co v Erlanger CA 26-Feb-1877
Sir George Jessel MR said: : ‘. . persons in a fiduciary position must make a full and fair disclosure when they are about to sell property to those towards whom they stand in that relation’ . .

Cited by:
CitedRatiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
CitedHalpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
CitedCaterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.236341

Aldridge and Hunt v Turner and Turner: 2004

The executors sought a declaration that the defendants, the son and his wife, owed money to the estate. They had cared for the deceased. The son was also the residuary benficiary. Whilst the father had been in hospital, the son had made 62 withdrawals from his bank account. Some were explained but the disproportionate total placed the burden rebutting a presumption of undue influence on him.
Held: Although some of the payments appeared legitimate there remained a greater sum taken which had to be repaid.
[2004] EWHC 2768
England and Wales

Updated: 04 July 2021; Ref: scu.234722

Massey v Midland Bank Plc: CA 1995

Where a woman executes a mortgage charging her property in favour of the bank to secure her partner’s debts, the bank is fixed with notice of the possibility of undue influence. It was not necessary that the couple should be married or cohabit.
Steyn LJ
[1995] 1 All ER 929
England and Wales
Cited by:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
ConsideredGovernor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.224818

Grigby v Cox: 1750

The court considered a claim that the husband had exercised undue influence over his wife.
Held: The court rejected any presumption of undue influence, and said that a court of equity ‘will have more jealousy’ over dispositions by a wife to a husband.
Lord Hardwicke
(1750) 1 Ves Sen 517
England and Wales
Cited by:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Updated: 01 June 2021; Ref: scu.180575

Biggins v Biggins: 28 Jan 2000

After the death of his common law wife, the deceased was visited by his brother, and later the brother’s daughter prepared and sent him a draft will. He suggested amendments to his own solicitor who prepared the new will. The brother sought to propound the amended draft, but was opposed by the son who alleged undue influence. An earlier will gave everything to the son. The draft left his bungalow to the son subject to the payment of funeral expenses but the contents were left to his brother and other members of his brother’s family and the residue was divided between the family. The solicitor confirmed he had queried his instructions and had them confirmed by the the deceased who told him he thought his son was sufficiently provided for by the gift of the property and that he wished now to benefit his brother and his brother’s family. The son argued that his father’s free will had been unfairly influenced by the fact that his uncle had visited the deceased at a time when the deceased was ‘unwell, grief stricken and vulnerable’.
Held: Although the deceased was indeed grief stricken and unwell there was no evidence that he was particularly vulnerable and the very fact of his making amendments to the draft Will that was sent to him and the conversation he had with his own Solicitor showed that the deceased had made up his own mind. Undue influence had not been established.
Unreported, 28 January 2000
England and Wales

Updated: 21 May 2021; Ref: scu.234723

Governor and Company of Bank of Scotland v Bennett and Another: CA 21 Dec 1998

The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been reluctant to sign, and claimed she had not been given independent advice. The bank appealed saying that notwithstanding the defeat of the guarantee, the charge remained binding. The judge found the husband’s undue influence on the wife in respect of both the charge and the guarantee.
Held: The bank could not be fixed with notice of the wife’s reluctance to execute the charge, since independent solicitors were instructed. The bank were not put on enquiry by the circumstances to suggest that she may have been acting under her husband’s undue influence. The bank’s appeal was upheld.
Lord Justice Auld, Lord Justice Chadwick, Sir Christopher Staughton
[1998] EWCA Civ 1965, [1999] 1 FLR 1115
England and Wales
Citing:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedRoyal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
Appeal fromGovernor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .

Cited by:
Appeal fromRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 14 May 2021; Ref: scu.145444

In re Craig, Decd: 1971

Undue influence was found to have been exercised by a secretary companion over her elderly employer.
[1971] Ch 95
England and Wales
Cited by:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedGoldsworthy v Brickell CA 1987
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.224821

Burston Finance Ltd v Spierway Ltd: ChD 1974

The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: ‘[W]here A’s money is used to pay off the claim of B, who is a secured creditor, A is entitled to be regarded in equity as having had an assignment to him of B’s rights as a secured creditor. It finds one of its chief uses in the situation where one person advances money on the understanding that he is to have certain security for the money he has advanced, and for one reason or another, he does not receive the promised security. In such a case he is nevertheless to be subrogated to the rights of any other person who at the relevant time had any security over the same property and whose debts have been discharged in whole or in part by the money so provided by him.’
Walton J
[1974] 1 WLR 1648, [1974] 3 All ER 735
England and Wales
Cited by:
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
ApprovedPaul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
ApprovedHalifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
CitedCheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
AppliedRoberts Petroleum Ltd v Bernard Kenny Ltd (in liquidation) CA 1982
The plaintiffs had supplied petrol to the defendant who owned two filling stations. The defendant prepared a statement of affairs ready to hold a meeting of creditors. The plaintiffs took their claim to judgement and obtained a charging order nisi . .
Not approvedRoberts Petroleum Ltd v Bernard Kenny Ltd HL 2-Jan-1983
The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
CitedLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.190504

Liles v Terry: 1895

The court considered the situation of a gift by a client to her solicitor’s wife.
[1895] QB 679
England and Wales
Cited by:
CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.220734

Cityland and Property (Holdings) Ltd v Dabrah: 1968

The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium rather than a specified interest rate. The mortgage also provided that the full premium should become payable upon the mortgagor’s default. The premium was effectively 57% of the amount of the loan, and had the effect of making the interest rate upon default an amount of 38%.
Held: The court can take into account such issues as the identity of the mortgagor when looking at any assertion of undue influence. A necessitous borrower may be overborne by a more powerful lender in circumstances giving rise to unconscionability on the part of the lender. Whilst there was no rule in equity precluding a lender from stipulating for a collateral advantage that was fair and reasonable, the charging of a premium of this order had the effect of destroying the borrower’s equity in the security, and that such a collateral advantage was in the circumstances unconscionable.
[1968] Ch 166
England and Wales
Citing:
AppliedG and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .

Cited by:
CitedMultiservice Bookbinding Ltd v Marden ChD 1978
To have a transaction set aside as a harsh and unconscionable bargain, a party would have to show not only that the terms of the transaction were harsh or oppressive, but also moral unfairness. Browne-Wilkinson J said: ‘In my judgment a bargain . .
CitedBrighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.219907

Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2): CA 31 Jul 1998

Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and allegations of undue influence is a question of notice.
Times 17-Aug-1998, Gazette 26-Aug-1998, [1998] EWCA Civ 1372, [1998] 4 All ER 705
England and Wales
Citing:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedPowell v Powell 1900
Strong moral pressure was applied by a stepmother to a girl who was only just twenty one.
Held: She was regarded as not really capable of dealing irrevocably with her parent or guardian in the matter of a substantial settlement. Where a . .
CitedWright v Carter CA 1903
The plaintiff sought to set aside a gift that he had made to his solicitor asserting undue influence.
Vaughan Williams LJ said: ‘. . whenever you have these fiduciary relations (and in the present case we have to deal with the particular . .

Cited by:
Disapproved in part (at 705)Barclay’s Bank Plc v Varenka Goff CA 3-May-2001
The respondent executed an all monies charge over her property to secure the liability of companies in which she had no direct interest. The bank insisted that she employ solicitors to give her independent advice. The bank sought to enforce its . .
DisapprovedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedGovernor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998
The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.144851

Cooke v National Westminster Bank Plc; Waldron Wetherell and Co: CA 17 Jun 1998

Where a bank had failed to require the solicitors witnessing a wife’s signature to a guarantee, to write to confirm that she had received independent advice, and there had been undue influence, they were deemed to be on notice of such influence.
Times 27-Jul-1998, [1998] EWCA Civ 1022
England and Wales
Citing:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Updated: 05 May 2021; Ref: scu.144501

Dunbar Bank Plc v Nadeem and Another: CA 1 Jul 1998

Manifest disadvantage had to be shown in order to establish a claim of presumed undue influence, but only damage if actual undue influence shown. Equity can only help if restitutio in integrum could be achieved.
Millett LJ
Times 01-Jul-1998, [1998] EWCA Civ 1027, [1998] 3 All ER 876, [1998] 2 FLR 457, [1998] 3 FCR 629, (1999) 31 HLR 402, [1998] Fam Law 595
Bailii
England and Wales
Citing:
CitedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .

Cited by:
CitedHalpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .

These lists may be incomplete.
Updated: 05 May 2021; Ref: scu.80168

Scotlife Home Loans (No 2) Limited v Melinek and Melinek: CA 9 Sep 1997

The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ firm.
Held: After a trial over several days, the judge had considered and rejected each of the second defendant’s defences. In a case of fraud, one or other of the claimant or the second defendant must lose out. Though the judge had found influence on the part of the husband, he had not found the manifest disadvantage to the second defendant required to found a claim of undue influnce. However following Stepsky, she had an arguable claim that the claimant was fixed with notice of the fraud perpetrated by its agents. Leave to appeal granted.
Lord Justice Nourse, Lord Justice Evans
[1997] EWCA Civ 2335
England and Wales
Citing:
CitedHalifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another CA 1-Dec-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
See alsoIn Re Melinek (A Bankrupt); Bristol & West Building Society v Alexander (The Trustee Of The Property of Back) (A Bankrupt); Melinek (A Bankrupt) ChD 10-Apr-1997
The applicants sought leave to proceed in actions against the defendants against whom bankruptcy proceedings were pending. Consent should have been obtained before proceedings were issued, but application was now made nunc pro tunc.
Held: The . .
Full AppealScotlife Home Loans (No 2) Limited v Melinek and Melinek CA 16-Dec-1997
The claimant loaned money to the defendants. Mr M was a solicitor who, with his partner, perpetrated a fraud. Mrs M appealed an order for possession saying the claimant was fixed with notice of the fraud by the solicitors acting as its agent.
Cited by:
See alsoIn Re Melinek (A Bankrupt); Bristol & West Building Society v Alexander (The Trustee Of The Property of Back) (A Bankrupt); Melinek (A Bankrupt) ChD 10-Apr-1997
The applicants sought leave to proceed in actions against the defendants against whom bankruptcy proceedings were pending. Consent should have been obtained before proceedings were issued, but application was now made nunc pro tunc.
Held: The . .
Leave grantedScotlife Home Loans (No 2) Limited v Melinek and Melinek CA 16-Dec-1997
The claimant loaned money to the defendants. Mr M was a solicitor who, with his partner, perpetrated a fraud. Mrs M appealed an order for possession saying the claimant was fixed with notice of the fraud by the solicitors acting as its agent.
Updated: 23 April 2021; Ref: scu.142733

Swindle, Fillmore, Cox, Rowett v Harrison and Harrison: CA 25 Mar 1997

Negligence short of fraud gave no right to damages for non-disclosure.
Evans LJ
Times 17-Apr-1997, [1997] PNLR 641, [1997] EWCA Civ 1339, [1997] 4 All ER 705
Bailii
England and Wales
Cited by:
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .

These lists may be incomplete.
Updated: 21 April 2021; Ref: scu.141735

West Bromwich Building Society v Davies, Davies: CA 7 Jan 1997

The second defendant sought suspension of a possession order pending her seeking leave to appeal. The property had been charged to secure several of the husband’s business debts and she sought leave to assert undue influence. She had previously been refused leave to appeal because of excessive delay.
Held: The order was suspended against an arrangement for a speedy hearing, and payment of a sum from the arrears.
Lord Justice Morritt Lord Justice Auld
[1997] EWCA Civ 761
England and Wales

Updated: 19 April 2021; Ref: scu.141157

Barclays Bank Plc v Thompson: CA 7 Nov 1996

Knowledge acquired by solicitors whilst tendering independent advice to a signatory did not come to them as agents for the lenders because at that time their professional duty was owed to the signatory alone. Simon Brown LJ said: ‘The starting point for consideration of these rival arguments must be the trilogy of recent Court of Appeal decisions which clearly establish a bank’s entitlement to rely upon a solicitor’s certificate that proper advice has been given to the signatory of a relevant instrument even though that solicitor acts principally for the very person against whose undue influence the signatory must be guarded . . Was it reasonable to expect a solicitor, in explaining the nature and effect of the document, to give appropriate advice? In my view it was. It is an ordinary incident of a solicitor’s duty to explain the obvious potential pitfalls of legal transactions to those about to take part in them.’
Simon Brown LJ
[1996] EWCA Civ 893, [1997] 4 All ER 816
Bailii
England and Wales
Cited by:
CitedGovernor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .

These lists may be incomplete.
Updated: 15 April 2021; Ref: scu.140760

Bank of Baroda v Rafique and Another: CA 15 Oct 1996

The defendant sought as an alternative to an order for possession, an order for the sale of the property pending resolution of the issue of her claim of undue influence.
Held: The case was remitted to the county court to reconsider an order for sale, and with a request that the balance of isues be determined quickly.
[1998] Fam Law 138, [1996] EWCA Civ 722, (1998) 30 HLR 845, [1998] 1 FCR 489, [1998] 1 FLR 524, [1997] NPC 457
Bailii
England and Wales

Updated: 12 April 2021; Ref: scu.140589

Credit Lyonnais Bank Nederland Nv v Burch: CA 20 Jun 1996

The defendant had charged her property to secure her employer’s debt. When the bank sought repossession, she said that the charge had been affected by the undue influence and that the terms of the charge were so harsh and inconscionable that a court should not enforce it.
Nousre, Millett, Swinton Thomas LJJ
[1996] EWCA Civ 1292, [1997] 1 All ER 144, [1997] 2 FCR 1, [1997] 74 P and CR 384, [1997] 29 HLR 513, [1997] Fam Law 168, [1997] 1 FLR 11
Bailii
England and Wales
Citing:
ApprovedMultiservice Bookbinding Ltd v Marden ChD 1978
To have a transaction set aside as a harsh and unconscionable bargain, a party would have to show not only that the terms of the transaction were harsh or oppressive, but also moral unfairness. Browne-Wilkinson J said: ‘In my judgment a bargain . .

Cited by:
CitedJones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

These lists may be incomplete.
Updated: 11 April 2021; Ref: scu.245309

Credit Lyonnais Bank Nederland NV v Burch: CA 1 Jul 1996

A Bank was to assume that undue influence existed where they knew that an employee was giving security for his employer’s debt to the bank. An unlimited guarantee given by an employee to his employer’s bank was set aside as unconscionable. The circumstances in which the doctrine of unconscionable bargains would apply were similar to those of undue influence. ‘Equity’s jurisdiction to relieve against (unconscionable bargains), although more rarely exercised in modern times is at least as venerable as its jurisdiction to relieve against those procured by undue influence.’ When attending his client to witness such a document, the solicitor must in any event advise her that she is under no obligation to enter into the transaction at all and, if she still wishes to do so, that she is not bound to accept the terms of any document which has been put before her.
Nourse LJ
Gazette 04-Sep-1996, Times 01-Jul-1996, [1997] 1 All ER 144
England and Wales
Cited by:
CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedPortman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 11 April 2021; Ref: scu.79606

Cheese v Thomas: CA 24 Aug 1993

A transaction entered into was manifestly disadvantageous to him. After a finding of undue influence, losses on the sale of a property are to be shared by both parties, so as to restore the parties to their original positions as near as might be.
Lord Nicholls Vice Chancellor
Independent 30-Aug-1993, Times 24-Aug-1993, [1994] 1 WLR 129
England and Wales
Cited by:
CitedVale v Armstrong, Armstrong ChD 21-May-2004
The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.79002

Gill v Woodall and Others: ChD 5 Oct 2009

The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she had been provided for.
Held: The challenge to the will succeeded. The testatrix had suffered agorophobia, and on being taken to the solicitors to execute a will would have her will overborn by irrational fears. Given also the additional circumstances of her domineering husband and the oddity of the provisions of the will when compared to her views when expressed, the claimant had made out that her will had not been freely given.
Allen QC J
[2009] EWHC 834 (Ch)
Bailii
England and Wales
Citing:
CitedGuardhouse v Blackburn 1866
. .
CitedAtter v Atkinson 1869
. .
CitedHarter v Harter 1873
. .
CitedTyrrell v Painton CA 1894
The rule throwing upon the party propounding a will the burden of showing that it expresses the true will of the deceased is not confined to cases where the will is prepared by a person taking a benefit under it. After reference to Barry v Butlin . .
CitedIn the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
CitedIn re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
CitedFuller v Strum CA 7-Dec-2001
fuller_strumCA01
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
CitedRichards v Allan ChD 2001
The court found that the will at issue was prepared under suspicious circumstances which included the fact that the idea of the will was conceived and implemented in a period after a significant hospitalisation where the physical and mental . .
CitedFulton v Andrew HL 1875
The will was professionally drawn but through agency of the executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
CitedBuckenham v Dickinson ChD 1992
The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .
CitedHall v Hall 1868
Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of . .
CitedParfitt v Lawless 1872
When a court considers the preparation and execution of a will, there can be no presumption of undue influence. . .
CitedWingrove v Wingrove 1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
CitedSidney Bolsom Investment Trust Ltd v E Karmios and Co (London) Ltd CA 1956
The tenants had intended to ask for a new tenancy of 14 years, but by mistake, the notice of request implied a new lease of seven years. The request nevertheless set out the duration of the proposed new tenancy. The tenants tried to bring in parol . .
CitedCrabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
CitedGreasley v Cooke 1980
For a proprietary estoppel to arise the plaintiff must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment. However, once it has been established that promises were made, and that there has been conduct by the . .
CitedTaylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
CitedJT Developments v Quinn and Another CA 1990
The plaintiff told the defendant it was willing to grant a lease on the same terms as those contained in a new tenancy that the plaintiff had recently granted to the tenant of a nearby shop, also owned by the plaintiff. The defendant carried out . .
CitedGillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
CitedJennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
CitedThorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
CitedUglow v Uglow and others CA 27-Jul-2004
The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
Held: The judge was right to have found that the promise was bound up with the claimant being . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedEdwards v Edwards and others ChD 3-May-2007
A son of the deceased alleged that his brother had used his undue influence over their mother to persuade her to change her will to exclude him from it.
Held: Lewison J set out the correct approach to an allegation of undue influence, saying: . .
CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
CitedEdwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .

Cited by:
Appeal fromGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
CitedWharton v Bancroft and Others ChD 8-Dec-2011
Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult . .

These lists may be incomplete.
Updated: 22 March 2021; Ref: scu.381738

Anthony Papouis v Valerie Gibson-West: ChD 4 Mar 2004

The deceased had purchased her flat using the discount available as a tenant, and money contributed by the defendant. A deed of trust had been executed, which the claimant now asserted had been obtained by undue influence.
Held: The principles underlying undue influence had been established in Etridge. The relationship between the parties was warm and friendly, and in the making of the deed of trust the relationship between Miss Bennett and Mrs Gibson-West was not such as to raise any evidential presumption of undue influence. The court set out a summary of the law of undue influence.
The Honourable Mr Justice Lewison
[2004] EWHC 396 (Ch)
Bailii
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

Cited by:
CitedBowser v Caley and others ChD 16-Mar-2006
The claimant alleged that the transfer by him of his land to his sister and her husband had been obtained by any of several wrongful means and should be set aside.
Held: The allegations of undue influence failed. The claimant did not establish . .

These lists may be incomplete.
Updated: 21 March 2021; Ref: scu.194116

Wharton v Bancroft and Others: ChD 8 Dec 2011

Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult daughters who challenged the will for lack of capacity and undue influence: ‘that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken’.
Held: The challenge failed and the court pronounced for the will. As to undue influence, the court had to be minded as to the burden and standard of proof, and ‘Is evidence of a departure from imprecisely expressed intentions evidence which is sufficiently cogent to persuade me that the explanation for the departure is that Mr Wharton’s volition was overborne by coercion, rather than that on his deathbed he saw things differently than he had in life? I answer that question in the negative. The imminence of death undoubtedly caused Mr Wharton to reassess matters. That is why he intended to get married. It was in the light of that intention that he made the 2008 Will. I do not regard it as suspicious that a ‘husband’ should leave to his ‘wife’ of 32 years the entirety of his estate, even if he is a rich man. The difference between the former indications and the actual terms of the 2008 Will are not in this case sufficiently cogent evidence to found the inference of coercion (particularly in the light of the consistent advice Mr Wharton had received as to the way of mitigating the now-imminent tax charge). I see no reason to treat Mr Wharton’s statements to Mr Bancroft (and the implication of his statement to Zena) about leaving his estate to Maureen as anything other than expressions of free will.’
The solicitor was not to be criticised for not following the ‘golden rule’ of securing the attendance of an independent medical expert to confirm the tetstaor’s capacity: ‘But testamentary capacity is not in issue in this case. I consider the criticism of Mr Bancroft for a failure to follow ‘the golden rule’ to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that ‘the golden rule’ has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.’
Norris J
[2011] EWHC 3250 (Ch)
Bailii
England and Wales
Citing:
CitedWingrove v Wingrove 1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
CitedCowderoy v Cranfield ChD 24-Jun-2011
cowderoy_cranfieldChD2011
The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of . .
CitedGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
CitedKey and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedKillick v Pountney and Another; Re Killick Deceased ChD 31-Mar-1999
Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their . .
CitedChannon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .
CitedEdwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
CitedHoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .

These lists may be incomplete.
Updated: 21 March 2021; Ref: scu.449871

The Royal Bank of Scotland Plc v Chandra and Another: ChD 28 Jan 2010

The bank sought to enforce guarantees supported by a charge on the defendants home. They said that the bank had by its actions in supporting further development of a project, released them from obligations to it.
Held: David Richards J analysed the difference between inadvertent failure to disclose and a deliberate suppression of information, in the context of a confidential husband and wife relationship: ‘Mis-stating the position or misleading the wife is different from an inadvertent failure to disclose, a distinction familiar in the law of misrepresentation. Of course a statement which, though strictly true, is misleading without qualification will fall within these observations of Lord Nicholls. Likewise, a deliberate suppression of information because the husband knows that, if disclosed, it will deter the wife from giving the guarantee will involve an abuse by him of her confidence. It would be unconscionable and rightly categorised as unacceptable means.’
Richards J
[2010] 1 Lloyds Rep 677, [2010] EWHC 105 (Ch)
Bailii
England and Wales
Cited by:
CitedHewett v First Plus Financial Group Plc CA 24-Mar-2010
The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, . .

These lists may be incomplete.
Updated: 19 March 2021; Ref: scu.396379

Bowser v Caley and others: ChD 16 Mar 2006

The claimant alleged that the transfer by him of his land to his sister and her husband had been obtained by any of several wrongful means and should be set aside.
Held: The allegations of undue influence failed. The claimant did not establish that the sister had sufficient influence over him, and nor had he established the plea of non est factum or mistake. As to the trust alleged: ‘for a constructive trust to arise it must be established that there was a common intention or understanding that the claimant was to have some beneficial interest in the property. If the claimant has acted to his detriment in reliance on this intention or understanding a constructive trust or proprietary estoppel arises. There is little difference between a constructive trust or a proprietary estoppel though it has been said that there is a greater flexibility in the remedy in the case of an estoppel. ‘ Such a trust arose in the nature of a life interest in the proceeds of sale. However the costs of the actin would be likely to deplete any fund available.
[2006] EWHC B3 (Ch)
Bailii
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedAnthony Papouis v Valerie Gibson-West ChD 4-Mar-2004
The deceased had purchased her flat using the discount available as a tenant, and money contributed by the defendant. A deed of trust had been executed, which the claimant now asserted had been obtained by undue influence.
Held: The principles . .

These lists may be incomplete.
Updated: 18 March 2021; Ref: scu.241303

UCB Corporate Services Limited v Williams: CA 2 May 2002

The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud.
Held: Undue influence occurred when improper means of persuasion were used to procure the complainant’s consent such that the consent ought not fairly to be treated as the expression of the complainant’s free will. Equity proceeded on the basis that there was no consent. Such would be enough to set aside the transaction as against the wrongdoer, and the lender was fixed with notice of that right. There was no need for the wife to establish that but for the trick, she would not have signed.
Lord Justice Peter Gibson
Times 27-May-2002, Gazette 13-Jun-2002, [2002] EWCA Civ 555
Bailii
England and Wales
Citing:
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedDowns v Chappell; Downs v Stephenson Smart (a Firm) CA 1996
The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants.
Held: The judge had been wrong by testing what would have been the true figures as against . .

Cited by:
CitedYorkshire Bank Plc v Tinsley CA 25-Jun-2004
The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced . .

These lists may be incomplete.
Updated: 05 March 2021; Ref: scu.170225

Bank of Scotland v Hussain and Another: ChD 5 Nov 2010

The second defendant had, under the undue influence of the first defendant sold him her house at an undervalue. She also asserted non est factum. He then charged it to the claimant. The court was asked which innocent party should prevail. She said she had been in actual occupation at the time of the charge. The bank said that the defendant was estopped from raising now issues which could have been brought in the earlier proceedings.
Newey J
[2010] EWHC 2812 (Ch)
Bailii
Land Registration Act 1925 70(1)(g)
England and Wales
Citing:
CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
CitedThoday v Thoday CA 1964
The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .

These lists may be incomplete.
Updated: 01 March 2021; Ref: scu.425781

Poosathurai v Kannappa Chettiar and Others: PC 18 Nov 1919

(Madras)
[1919] UKPC 110, [1919] LR 47
Bailii
Cited by:
CitedNational Westminster Bank plc v Morgan HL 7-Mar-1985
Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other . .

These lists may be incomplete.
Updated: 27 February 2021; Ref: scu.423352

Smith v Cooper and Another: CA 25 Jun 2010

The Court set out the test for where to set aside a transaction after a finding of undue influence: ‘[where] the presumption of undue influence applies, that is to say, the court will presume that the transaction was procured by undue influence exercised by one party over the other, in other words by the abuse by the one of the position of influence that he has over the other. In such a case it is then up to the one party to prove that the transaction was not procured by an abuse of his position of influence but was rather the free exercise of the will of the other party as a result of full, free and informed thought.’
Jacob, Lloyd, Wilson L
[2010] EWCA Civ 722, [2010] 2 FCR 551, [2010] 2 FLR 1521
Bailii
England and Wales
Cited by:
CitedBrown v Stephenson ChD 23-Aug-2013
The claimant sought to have set aside transfers and declarations of trust made by her in the defendant’s favour, saying that they had been given under his undue influence taking advantage of her dyslexia, and by bullying.
Held: The claims of . .

These lists may be incomplete.
Updated: 25 February 2021; Ref: scu.418436

Bank of Credit and Commerce International SA v Aboody: CA 1989

In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a clear distinction has been drawn between (1) those cases in which the court will uphold a plea of undue influence only if it is satisfied that such influence has been affirmatively proved on the evidence (commonly referred to as cases of ‘actual undue influence’); (2) those cases (commonly referred to as cases of ‘presumed undue influence) in which the relationship between the parties will lead the court to presume that undue influence has been exerted unless evidence is adduced proving the contrary, eg by showing that the complaining party has had independent advice.’ He defined actual undue influence as: ‘Leaving aside proof of manifest disadvantage, we think that a person relying on a plea of actual undue influence must show: (a) that the other party to the transaction (or someone who induced the transaction for his own benefit) had the capacity to influence the complainant; (b) that the influence was exercised; (c) that its exercise was undue; (d) that its exercise brought about the transaction’
Slade LJ
[1992] 4 All ER 955, [1989] 2 WLR 759, [1990] 1 QB 923
England and Wales
Citing:
CitedAllcard v Skinner CA 1887
allcard_skinnerCA1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .

Cited by:
CitedDunbar Bank Plc v Maurice Nadeem Zubaida Nadeem and Another CA 1-Jul-1998
Manifest disadvantage had to be shown in order to establish a claim of presumed undue influence, but only damage if actual undue influence shown. Equity can only help if restitutio in integrum could be achieved. . .
CitedGovernor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998
The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been . .
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
DisapprovedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedBrown v Stephenson ChD 23-Aug-2013
The claimant sought to have set aside transfers and declarations of trust made by her in the defendant’s favour, saying that they had been given under his undue influence taking advantage of her dyslexia, and by bullying.
Held: The claims of . .

These lists may be incomplete.
Updated: 15 February 2021; Ref: scu.180570

Thompson v Foy: ChD 20 May 2009

Lewison J discussed the decision in Etridge: ‘In the light of the arguments before me, there are some additional observations I should make. First, although in Etridge Lord Nicholls of Birkenhead described the paradigm case of a relationship where influence is presumed as being one in which the complainant reposed trust and confidence in the other party in relation to the management of the complainant’s financial affairs, I do not consider that this description was intended to be exhaustive. To restrict the type of trust and confidence in this way would not be consistent with the authoritative exposition by Lindley LJ in Allcard v Skinner (1887) 36 Ch D 145 in which Lindley LJ referred to ‘cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him’. This very sentence was paraphrased by Lord Nicholls. In addition, when describing the circumstances in which the burden of proof would shift Lord Nicholls used much more general language . . Second, the requisite trust and confidence can arise in the course of the impugned transaction itself: Turkey v Awadh [2005] 2 P and CR 29.’
Lewison J
[2009] EWHC 1076 (Ch)
Bailii
England and Wales
Citing:
CitedAllcard v Skinner CA 1887
allcard_skinnerCA1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedTurkey v Awadh and Another CA 8-Mar-2005
. .

Cited by:
CitedHewett v First Plus Financial Group Plc CA 24-Mar-2010
The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, . .
AppliedLink Lending Ltd v Bustard CA 23-Apr-2010
The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had . .

These lists may be incomplete.
Updated: 15 February 2021; Ref: scu.346246

Jorden, And Louisa, His Wife v Money: HL 30 Jul 1854

Where a permn possesses a legal right, a Court of Equity will not interfere to restrain him from enforcing it, though, between the time of its creation and that of his attempt to enforce it, he has made representations of his intention to abandon it. Nor will Equity interfere even though the parties to whom these representations were made, have acted on them, and have, in full belief in them, entered into irrevocable engagements. To raise an equity in such a case, there must be a misrepresentation of existing facts, and not of mere intention (Lord St. Leonards dissentiente).
Per Lord St. Leonards, ‘ It is immaterial whether there is a misrepresentation of a fact as it actually existed, or a misrepresentation of an intention to do or abstain from doing an act which would lead tom the damage of the party whom you thereby induced to deal in marriage, or in purchase, or in anything of that sort, on the faith of that representation.’
[1854] UKHL J50, [1854] 10 ER 868, (1854) HL 185, (1854) 5 HL Cas 185, [1854] EngR 787, (1854) 5 HLC 185, (1854) 10 ER 868, [1854] UKPC 22
Bailii, Commonlii, Bailii
England and Wales

Updated: 13 February 2021; Ref: scu.293644

Birmingham City Council v Forde: QBD 13 Jan 2009

Christopher Clarke J upheld the validity of a retrospective CFA entered into between solicitor and client on the eve of a settlement, in the knowledge that the existing arrangement might be vulnerable to challenge. The paying party alleged undue influence.
Held: The challenge was rejected. The client had been ‘prepared to assist her solicitors recover their fees despite the challenge to the validity of CFA 1’, and that it would be ‘entirely understandable for her not to seek to rely on the unattractive contention that [the solicitors] should get nothing at all for what they had done . . ‘
Christopher Clarke J
[2009] EWHC 12 (QB), [2009] 1 WLR 2732, [2010] 1 All ER 802, [2009] 2 Costs LR 206, [2009] NPC 7
Bailii
Citing:
Appeal fromForde v Birmingham City Council SCCO 30-Apr-2008
. .

Cited by:
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .

These lists may be incomplete.
Updated: 12 February 2021; Ref: scu.279942

Honeyman’s Executors v Sharp: scs 14 Mar 1978

The action concludes for declarator that a purported gift by the deceased to the defender of four valuable paintings by the French artist Boudin falls to be reduced and for certain consequential relief. Though the word ‘undue’ is not used in the pursuers’ pleas-in-law, the action is in substance laid on the principle usually described as ‘undue influence.’
Lord Maxwell
1978 SC 223, [1978] ScotCS CSOH – 4, 1979 SLT 177
Bailii

Updated: 12 February 2021; Ref: scu.279506

NA v MA: FD 24 Nov 2006

The very wealthy H found that W had committed adultery with one of his friends. H pressured W to sign an agreement providing that she would receive a specified lump sum and annual payments if their marriage ended in divorce. W signed it because H insisted that she should do so if the marriage was to continue.
Held: Baron J said that: ‘as the idea of an agreement evolved it hardened into a legal, post-nuptial agreement’. It was on this basis that H sought to have the agreement converted into an order of the court. When dealing with the law Baron J did not distinguish clearly between ante-nuptial, post-nuptial and separation agreements. She said: ‘It is an accepted fact that an agreement entered into between husband and wife does not oust the jurisdiction of this court. For many years, agreements between spouses were considered void for public policy reasons but this is no longer the case. In fact, over the years, pre-nuptial ‘contracts’ have become increasingly common place and are, I accept, much more likely to be accepted by these courts as governing what should occur between the parties when the prospective marriage comes to an end. That is, of course, subject to the discretion of the court and the application of a test of fairness/manifest unfairness. It may well be that Parliament will provide legislation but, until that occurs, current authority makes it clear that the agreements are not enforceable per se, although they can be persuasive (or definitive) depending upon the precise circumstances that lead to their completion.’
The judge went on to apply the law of undue influence, holding: ‘I am clear that, to overturn the agreement, I have to be satisfied that this wife’s will was overborne by her husband exercising undue pressure or influence over her. I am also clear that if I do not overturn the agreement per se, I still have to consider whether it is fair and should be approved so as to become a court order.’
She overturned the agreement on the ground of undue influence.
Baron J DBE
[2006] EWHC 2900 (Fam), [2007] 1 FLR 1760, [2007] Fam Law 295
Bailii
England and Wales
Cited by:
CitedRadmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
CitedRadmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .

These lists may be incomplete.
Updated: 11 February 2021; Ref: scu.279027

Bank of Montreal v Stuart: PC 1911

The court used the phrase ‘immoderate and irrational’ to describe the character of a transaction which might of its nature suggest undue influence. A solicitor who is advising a client about a transaction and has reason to suspect that the client is the victim of undue influence is placed under a duty to the client to try and protect her.
The relationship of husband and wife did not as a matter of law raise a presumption of undue influence.
Lord Macnaghten
[1911] AC 120
Canada
Cited by:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedBrown v Stephenson ChD 23-Aug-2013
The claimant sought to have set aside transfers and declarations of trust made by her in the defendant’s favour, saying that they had been given under his undue influence taking advantage of her dyslexia, and by bullying.
Held: The claims of . .

These lists may be incomplete.
Updated: 10 February 2021; Ref: scu.180571

Forsdike v Forsdike: CA 21 Feb 1997

The claimant appealed dismissal of his claim to set aside a transfer by way of gift by his father on the basis of an alleged undue influence.
Held: The judges was entitled to make the findings he had done, and to be impressed by the spacing of the transactions. The appeal failed.
[1997] EWCA Civ 1066
Bailii
England and Wales
Citing:
CitedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedLangton v Langton and Another ChD 24-Feb-1995
The doctrine of ‘unconscionable bargain’ does not extend to gifts obtained by undue influence. . .
CitedAvon Finance Co Ltd v Bridger CA 1985
The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
Updated: 09 February 2021; Ref: scu.141462

The Centre for Reproductive Medicine v U: FD 24 Jan 2002

The defendant sought to use the sperm of her deceased husband for her insemination. The deceased had apparently withdrawn his consent to the use of his sperm posthumously. His widow claimed that he had been influenced to change the form, by an implied threat that the treatment would not continue.
Held: the case of re T established that for undue influence it must be shown that the patients will was overborne. That was not the case here.
The President
[2002] EWHC 36 (Fam)
Human Fertilisation and Embryology Act 1990
England and Wales
Citing:
CitedRegina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
CitedIn re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .

Cited by:
Appeal fromMrs U v Centre for Reproductive Medicine CA 2002
The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced . .
Appeal fromU v Centre for Reproductive Medicine CA 24-Apr-2002
The claimant appealed a refusal to grant an order preventing the destruction of the sperm of her late husband held by the respondent fertility clinic. The clinic had persuaded her husband to sign a form of consent for this purpose. The claimant said . .

These lists may be incomplete.
Updated: 09 February 2021; Ref: scu.167528

De Wind v Wedge: ChD 19 Mar 2008

Brother and sister contested the devolution of their mother’s house. The sister had fallen into debt and been given much financial assistance by other members of the family. The brother said that to rebalance that, the mother had given the house to him. The sister claimed undue influence.
Patten J
[2008] EWHC 514 (Ch)
Bailii
Citing:
CitedGoldsworthy v Brickell CA 1987
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 07 February 2021; Ref: scu.266471

U v Centre for Reproductive Medicine: CA 24 Apr 2002

The claimant appealed a refusal to grant an order preventing the destruction of the sperm of her late husband held by the respondent fertility clinic. The clinic had persuaded her husband to sign a form of consent for this purpose. The claimant said that the form had been obtained by undue influence, believing that the treatment would not be provided unless it was signed. He had first completed the form to refuse such consent, but the staff had persuaded him to change it.
Held: A withdrawal of consent might be vitiated by undue influence. It was for the claimant to establish undue influence. However here, the issue is not strictly one of undue influence, but rather of a consent given within a particular statutory context. The court stressed the great importance to be attached to the prescribed form completed in compliance with Schedule 3 of the Act. The judge’s decision was essentially one of fact having heard and seen the witnesses. That decision was not to be disturbed.
Lady Justice Hale
[2002] EWCA Civ 565
Bailii
Human Fertilisation and Embryology Act 1990
England and Wales
Citing:
CitedIn re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Appeal fromThe Centre for Reproductive Medicine v U FD 24-Jan-2002
The defendant sought to use the sperm of her deceased husband for her insemination. The deceased had apparently withdrawn his consent to the use of his sperm posthumously. His widow claimed that he had been influenced to change the form, by an . .

Cited by:
CitedEvans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .

These lists may be incomplete.
Updated: 23 January 2021; Ref: scu.170240

Padgham and another v Rochelle and another: ChD 1 Aug 2002

The testator occupied farmland and buildings. He was helped in maintaining the farm by his son, but gave the land to his grandchildren by his will. The son claimed to have been granted an informal written agricultural tenancy by his father before his death.
Held: The arrangement was not intended to create legal relations, and no tenancy was created. The agreement was sufficient to satisfy section 52, but in construing it, the court had to allow for the fact that the deceased had placed particular trust and confidence in the son, and a presumption of undue influence arose. The claimant had not displaced that presumption, and the tenancy agreement was set aside.
Mr Launcelot Henderson QC, sitting as a deputy judge of the division
Gazette 03-Oct-2002
Law of Property Act 1925 52
England and Wales
Citing:
CitedWalsh v Lonsdale CA 1882
Lonsdale purported to grant to Walsh a seven year lease with rent payable in advance. The lease was not embodied in a deed, and when Walsh went into possession, an annual tenancy with rent payable in arrear was created. Walsh did not pay in advance, . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 22 January 2021; Ref: scu.177316

Greene King Plc v Stanley and others: CA 30 Nov 2001

The claimant challenged an order that the two defendant chargors were discharged from liability to the claimants under their individual voluntary arrangement and on the basis that it had been entered under undue influence.
[2001] EWCA Civ 1966, [2002] BPIR 491
Bailii
England and Wales
Citing:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 21 January 2021; Ref: scu.218520

National Westminster Bank plc v Morgan: HL 7 Mar 1985

Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other ordinary motives on which people ordinarily act. It was not enough simply to show a relationship of dominance or influence, but also the parties needed to establish that the transaction constituted a manifest and unfair disadvantage to the person seeking.
The relationship of borrower and lender, or banker and customer, does not give rise, of itself, to any presumption of special disability on the part of the borrower or of undue influence, but exceptionally it may do. If the relationship of banker and customer becomes one in which the banker acquires a dominating influence, and a manifestly disadvantageous transaction is proved, ‘there would then be room’ for a court to presume that it resulted from the exercise of undue influence. ‘The Court of Appeal erred in law in holding that the presumption of undue influence can arise from the evidence of the relationship of the parties without also evidence that the transaction itself was wrongful in that it constituted an advantage taken of the person subjected to the influence which, failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it.’
Lord Scarman said that the determination of whether a relationship of undue influence exists is to be arrived by ‘a meticulous examination of the facts.’ and ‘the Court of Appeal erred in law in holding that the presumption of undue influence can arise from the evidence of the relationship of the parties without also evidence that the transaction itself was wrongful in that it constituted an advantage taken of the person subjected to the influence which, failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it.’ He continued with reference to Poosathurai: ‘The wrongfulness of the transaction must, therefore be shown: it must be one in which an unfair advantage has been taken of another . . the doctrine is not limited to transactions of gift. A commercial relationship can become a relationship in which one party assumes a role of dominating influence over the other.’
Lord Scarman, Lord Keith of Kinkel, Lord Roskill, Lord Bridge of Harwich, Lord Brandon of Oakbrook
[1985] AC 686, [1985] UKHL 2, [1985] 1 All ER 821, [1985] ANZ Conv R 251, [1985] 2 WLR 588
Bailii
England and Wales
Citing:
CitedPoosathurai v Kannappa Chettiar and Others PC 18-Nov-1919
(Madras) . .

Cited by:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .

These lists may be incomplete.
Updated: 21 January 2021; Ref: scu.219906

Yorkshire Bank Plc v Tinsley: CA 25 Jun 2004

The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced the earlier ones inherited that defect.
Held: The last mortgage was inseparably connected with the earlier mortgages and there was nothing to render the past abuse, which amounted to undue influence, and of which the Bank had constructive notice, inoperative in connection with the last mortgage. As a result, the mere fact that there was no new and additional inequity in relation to the 1994 mortgage was not determinative, for the inequity of the earlier transactions had not been cured.
Lord Justice Peter Gibson Lord Justice Rix Lord Justice Longmore
[2004] EWCA Civ 816, Times 12-Aug-2004, [2004] 3 All ER 463, [2004] 1 WLR 2380
Bailii
England and Wales
Citing:
CitedAlec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .
CitedCrowe v Ballard 1790
Crowe was the expectant heir to a legacy with a life tenant and in 1777 asked Ballard to sell his expectancy on his behalf. Ballard claimed to have sold to Toft for andpound;350, but had in fact bought the expectancy himself and advanced . .
CitedUCB Corporate Services Limited v Williams CA 2-May-2002
The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud.
Held: Undue influence occurred when improper means of persuasion were used to . .
CitedKempson v Ashbee CA 1874
Ashbee lent money to Sladden (the stepfather) in 1857 taking a promissory note from Miss Kempson, the stepdaughter, to repay andpound;450 with interest. Miss Kempson was 20 at the time and living with Sladden and her mother; she had initially . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 13 January 2021; Ref: scu.198408

Coldunell Ltd v Gallon: CA 1986

Even in the absence of agency, if the debtor has been guilty of undue influence or misrepresentation in securing the giving of security by a third party to cover his debt to the creditor, the creditor may not be able to enforce the surety contract if the creditor had notice, actual or constructive, of the debtor’s conduct.
[1986] 1 All ER 429, CA, [1986] 2 WLR 466, [1986] QB 1184
England and Wales
Cited by:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Updated: 13 January 2021; Ref: scu.180574

Vale v Armstrong, Armstrong: ChD 21 May 2004

The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The transaction was disadvantageous to the claimant and there was therefore a presumption of undue influence. However there was also evidence of independent advice etc to rebut that presumption, but ‘it by no means follows that prior legal advice rebuts the presumption.’
The independent advice had failed to bring home the true disadvantages of the transaction to the claimant. The defendant failed to rebut the presumption, and it was set aside.
Mr. Justice Evans-Lombe
[2004] EWHC 1160 (Ch)
Bailii
Citing:
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedCheese v Thomas CA 24-Aug-1993
A transaction entered into was manifestly disadvantageous to him. After a finding of undue influence, losses on the sale of a property are to be shared by both parties, so as to restore the parties to their original positions as near as might be. . .

These lists may be incomplete.
Updated: 13 January 2021; Ref: scu.197075

Jennings and Another v Cairns: CA 18 Nov 2003

Nieces had fallen out over their aunt’s estate. One niece had been closer than the others, and despite not properly understanding what she was doing the deceased had made lifetime gifts to the niece who was now executor. She appealed a finding of having an obligation as executor to reinstate the estate despite not herself having misled the aunt.
Held: The court had to undertake a balanced assessment of all the relevant circumstances in deciding whether undue influence had been established and whether it had been rebutted by the niece. The niece might have discharged that burden by showing that her aunt had made an informed choice, but the niece had not done this. Mistake was not a complete answer merely because advice independent of the niece had been given to Enid.
Parties should recognise that it is the practice of the Court of Appeal judges to pre-read case, and therefore, agreed lists of authorities must be supplied as required 28 days before the hearing and in any event no less than eight days before. The court recognised the difficulties of acceding to the 28 day requirement, but the eight day period must be complied with. Parties had not properly complied with the 2001 direction on citation of authorities. That direction must be followed.
Lord Phillips of Worth Matravers MR
Times 25-Nov-2003, [2003] EWCA Civ 1935
Bailii
Civil Procedure Rules 15.11
England and Wales
Citing:
CitedPractice Direction on the Citation of Authorities LCJ 9-Apr-2001
The court laid down rules for restricting the citation of authorities, which rules are to be applied in all courts except criminal courts. The increase in the number of judgments series being available had come to be problematic for all involved, . .
Appeal fromRe Davidge 2003
Family members said that another niece had obtained gifts from the deceased by the exercise of undue influence. Several substantial gifts had been made to a niece and her family who had been more like a daughter to the deceased. Correspondence . .

Cited by:
CitedGoodchild v Branbury and others CA 15-Dec-2006
Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is . .

These lists may be incomplete.
Updated: 11 January 2021; Ref: scu.189953

UCB Group Ltd v Hedworth: CA 4 Dec 2003

The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled to invoke the right of subrogation in the same way, and to the same extent, as a lender who had received security which turned out to be void. The judge’s limited record of his findings made it difficult to handle the appeal. There is a clear distinction between a charge which is voidable from its inception and one which is valid and fully enforceable, when made but which may become void at some future date unless registered. The bank had obtained what it bargained for. The Butler -v- Rice principle applied in the instant case. If the Barclays charge was voidable at the instance of the defendant, Barclays must be taken to have intended to retain and keep alive any security rights to which it was entitled in the absence of an effective security, and, by parity of reasoning. UCB was in turn entitled to be subrogated to those rights.
Lord Justice Jonathan Parker Lord Justice Kennedy Lord Justice Longmore
[2003] EWCA Civ 1717, Times 09-Jan-2004, Gazette 29-Jan-2004
Bailii
England and Wales
Citing:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedCapital Finance v Stokes 1969
A voidable charge remains valid until avoided. ‘It was argued for the vendor that what he contracted to get was a valid legal charge, and that he has not received because the company in default of its obligation under section 95 [of the Companies . .
CitedBurston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
CitedRhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedCastle Phillips Finance v Piddington CA 1995
The wife charged the matrimonial home to Lloyds to secure the husband’s indebtedness. The husband subsequently agreed with Barclays for the indebtedness to be refinanced. The husband and an accomplice forged her signature on a transfer of the . .
CitedScotlife Home Loans v Hedworth CA 1996
The lender claimed possession as chargee under a legal charge granted by the respondents who filed Defences contending that the claimant had agreed to replace the secured loan and to waive its remedies for default under the charge. The claimant said . .
CitedBarbara Ann Leggatt v National Westminster Bank Plc CA 19-Oct-2000
Where a wife executed a charge over a jointly owned property to secure her joint debts, and then seventeen years later executed a replacement charge to secure borrowings of the husband and she had received independent advice, she could not assert . .
CitedGhana Commercial Bank v Chandiram PC 1960
The bank made an advance to the owner of property in Accra which was used to pay off his indebtedness to Barclays (DC and O) Ltd, secured by an equitable mortgage. The owner executed a legal mortgage in favour of the Ghana Bank, but this was . .
CitedAbbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
CitedButler v Rice 1910
The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The . .

Cited by:
CitedSerious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .

These lists may be incomplete.
Updated: 10 January 2021; Ref: scu.188416

Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society: HL 9 Nov 1970

The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The common law doctrine of non est factum has a very narrow and limited application. The transaction must be essentially different in substance or in kind from the transaction intended. The plea is available to a narrow class of persons, namely, those who are: unable to read owing to blindness or illiteracy; or permanently or temporarily unable, through no fault of their own, to have without explanation any real understanding of the purport of a particular document, whether that lack of understanding be from defective education, illness or innate incapacity.
Lord Wilberforce said: ‘leaving aside negotiable instruments to which special rules may apply, a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which, if neglected, prevents him from denying his liability under the document according to its tenor. I would add that the onus of proof in this matter rests upon him.’
Lord Reid said: ”the matter generally arises when an innocent third party has relied on a signed document in ignorance of the circumstances in which it was signed, and where he will suffer loss if the maker of the document is allowed to have it declared a nullity.’
. . And ‘The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisors without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have had such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.’
Lord Wilberforce, Lord Reid
[1971] AC 1004, [1970] UKHL 5, [1970] 3 All ER 961, [1970] 2 WLR 1078
Bailii
England and Wales
Citing:
CitedHowatson v Webb ChD 1907
The defendant, a solicitor’s clerk, pleaded non est factum to an action on a mortgage deed he had signed. He said that he had thought it to be a deed transferring property held as nominee for the solicitor.
Held: The court should make . .
CitedHowatson v Webb CA 1908
The court accepted a plea of non est factum, approving the distinction made by the trial judge between the approval of the contents and the character of the deed executed. Cozens-Hardy MR said that he approved every word of Warrington J’s judgment. . .
CitedCarlisle and Cumberland Banking Company v Bragg 1911
A party wishing to establish a plea of non est factum in order to avoid liability under a deed, must show that he had taken care in signing the document.
Held: There could not be negligence in the execution of a document unless a duty was owed . .
CitedThoroughgood’s case; Thoroughgood v Cole; Throwgood v Turnor, Moore 1584
Where a signatory is blind, and the document is read to him falsely either by the grantee or by a stranger, then the deed is not binding on him. An illiterate signatory need not execute the deed without it being read over to him, but where he . .
CitedMuskham Finance Ltd v Howard CA 1963
Non est factum limited but effective
K instructed a dealer to sell a car which K held under an hire purchase agreement. The dealer found a who wanted hire purchase terms. K signed, at the dealer’s request, a document for the purposes of the transaction. Later, the dealer told K he had . .
CitedWhelpdale’s Case 1604
Where a bond is delivered to somebody else to the use of the obligee, on being tendered is refused, the delivery of the deed was no longer effective, the obligee could not later agree to it, and the obligor could plead non est factum. . .
CitedNational Provincial Bank v Jackson CA 1886
Two sisters executed deeds relating to their property, but did not read them first or having them read out to them or explained. They said that they had relied on their brother, a solicitor.
Held: Cotton LJ said that they could not have been . .
CitedFoster v MacKinnon 1869
The court considered a plea of non est factum.
Held: Byles J set out situations where the plea was available: ‘It seems plain, on principle and on authority, that, if a blind man, or a man who cannot read, or who for some reason (not implying . .
CitedWhelpdale’s Case 1604
Where a bond is delivered to somebody else to the use of the obligee, on being tendered is refused, the delivery of the deed was no longer effective, the obligee could not later agree to it, and the obligor could plead non est factum. . .
CitedShulter’s Case 1611
Where a blind or illiterate person (here 115 years old) had a deed read over to him before it was signed, but he was mislead, he could plead non est factum. . .
CitedIn re Leighton’s Conveyance CA 1937
Rules of court provided that a person suing as a poor person should not be ordered to pay costs.
Held: The Order did not prevent the mortgagee adding to her security her costs in an action brought by the mortgagor suing as a poor person. Lord . .

Cited by:
CitedAbacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
abacus_barrChD03
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
CitedAvon Finance Co Ltd v Bridger CA 1985
The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
CitedConoco Limited v Khan and Khan CA 15-Nov-1996
The second defendant denied liability under loan agreements pleading non est factum, and saying that they had been been obtained by undue influence. . .
CitedPeekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .

These lists may be incomplete.
Updated: 09 January 2021; Ref: scu.181653

Isabella Doris Briggs Or Broadway v Clydesdale Bank Plc: OHCS 26 May 2000

Where a guarantor sought to deny liability, asserting lack of good faith on the part of the bank, and the bank sought to explain away its failure to ensure that the guarantor was aware of the onerous nature of the guarantee by asserting that the guarantor had had independent advice, the bank could not rely upon dealings with solicitors where it was not explicit that the solicitors were giving such independent advice to the guarantors. What was good faith must depend upon the facts of each case, but in this case the situation was sufficiently unclear to have placed on the bank a duty to enquire.
Lord Macfadyen
Times 12-Sep-2000, [2000] ScotCS 138
Bailii, ScotC

Updated: 08 January 2021; Ref: scu.170384

Banco Exterior Internacional SA (Formerly Banco Exterior – UK a Limited Liability Company Incorporated Under the Laws of Spain) v Thomas and Barry the Executors of Patricia Dempsey: CA 31 Jul 1996

The bank sought to enforce a guarantee against the estate of the deceased guarantor. The executors alleged undue influence. The bank appealed.
Held: Where the other contracting party had had actual knowledge of the undue influence or misrepresentation the victim might not be held to the contract.
[1996] EWCA Civ 558, [1997] 1 WLR 221
Bailii
England and Wales
Cited by:
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

These lists may be incomplete.
Updated: 27 December 2020; Ref: scu.140425

Barbara Ann Leggatt v National Westminster Bank Plc: CA 19 Oct 2000

Where a wife executed a charge over a jointly owned property to secure her joint debts, and then seventeen years later executed a replacement charge to secure borrowings of the husband and she had received independent advice, she could not assert that the bank was fixed with notice of the undue influence of her husband. In any event the new charge was not on its face disadvantageous to her. If the new charge had not been executed the business would have failed, and she would have been caught by the earlier charge in any event.
Times 16-Nov-2000, Gazette 02-Nov-2000, [2001] 1 FLR 563, [2000] EWCA Civ 261
Bailii
England and Wales
Cited by:
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .

These lists may be incomplete.
Updated: 23 December 2020; Ref: scu.135697

Bischoff’s Trustee v Frank: 1903

Wright J
(1903) 89 LT 188
England and Wales
Cited by:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Gazette 17-Dec-93, Times 22-Oct-93, Independent 22-Oct-93, [1993] 3 WLR 786, [1994] 1 AC 180, [1993] 4 All ER 417, [1993] UKHL 6

These lists may be incomplete.
Updated: 18 December 2020; Ref: scu.180573

First National Bank Plc v Walker and Another: CA 23 Nov 2000

A claim that a bank’s charge should be set aside as having been obtained by the undue influence of a co-mortgagee was parasitic upon a claim as between the co-mortgagors in family proceedings. The wife sought as against the bank to challenge the validity of the charge, but asserted the existence of the charge in the course of proceedings which continued in parallel to the possession proceedings. She could not blow hot and cold. The claim against the husband and subsequent transfer had included an explicit acknowledgement by her of the charge, and that decided the issue between her and the bank.
Times 13-Feb-2001, [2000] EWCA Civ 3015, [2001] 1 FCR 21, [2001] 1 FLR 505, [2001] Fam Law 182
Bailii
England and Wales
Cited by:
CitedSmith v Skanska Construction Services Ltd QBD 29-Jul-2008
The court considered whether the driver of a vehicle involved in a fatal road accident in Thailand was driving within the authority of the UK employers. The driver was not an employee but had authority to use company vehicles for tasks for the . .
[2008] EWHC 1776 (QB)

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.80561

CIBC Mortgages Plc v Pitt and Another: HL 21 Oct 1993

Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to the existence of undue influence only because a loan was to be made in joint names. It must have some actual notice of that undue influence. In cases of undue influence disadvantage is not a necessary ingredient of the cause of action. It is not essential that the transaction should be disadvantageous to the pressurised or influenced person in any way. A balance is to be found between the protection of a wife from improper pressure, and the need for banks to have predictable consequences of making secured loans. ‘What, then, was known to the plaintiff that could put it on inquiry so as to fix it with constructive notice? So far as the plaintiff was aware, the transaction consisted of a loan to husband and wife to finance the discharge of an existing mortgage on [the matrimonial home], and as to the balance to be applied in buying a holiday home. The loan was advanced to husband and wife jointly. There was nothing to indicate to the plaintiff that this was anything other than a normal advance to husband and wife for their joint benefit.’
Lord Browne-Wilkinson
Gazette 17-Dec-1993, Independent 22-Oct-1993, Times 22-Oct-1993, [1994] 1 AC 200, [1993] 3 WLR 802, [1993] 4 All ER 433, [1993] UKHL 7
Bailii
Citing:
CitedNational Westminster Bank plc v Morgan HL 7-Mar-1985
Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other . .
[1985] AC 686, [1985] UKHL 2, [1985] 1 All ER 821, [1985] ANZ Conv R 251, [1985] 2 WLR 588
CitedBarclays Bank Plc v O’Brien and Another CA 22-May-1992
A bank leaving a husband to explain a proposed charge over the matrimonial home to his wife to secure his business debts, could not enforce that charge against her. There was a presumption of undue influence in the husband which made the charge . .
Gazette 15-Jul-92, [1992] 4 All ER 983, [1993] QB 109
CitedAllcard v Skinner CA 1887
allcard_skinnerCA1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
(1887) 36 Ch D 145
CitedPoosathurai v Kannappa Chettiar PC 1919
. .
[1919] LR 47 1A
DisapprovedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
[1992] 4 All ER 955, [1989] 2 WLR 759, [1990] 1 QB 923

Cited by:
CitedUCB Corporate Services Limited v Williams CA 2-May-2002
The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud.
Held: Undue influence occurred when improper means of persuasion were used to . .
Times 27-May-02, Gazette 13-Jun-02, [2002] EWCA Civ 555
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Gazette 17-Dec-93, Times 22-Oct-93, Independent 22-Oct-93, [1993] 3 WLR 786, [1994] 1 AC 180, [1993] 4 All ER 417, [1993] UKHL 6
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
[2003] EWCA Civ 1717, Times 09-Jan-04, Gazette 29-Jan-04
CitedSandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
[2004] EWCA Civ 64, Times 26-Feb-04
CitedVale v Armstrong, Armstrong ChD 21-May-2004
The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The . .
[2004] EWHC 1160 (Ch)
CitedBarclays Bank Plc v Boulter and Another HL 26-Oct-1999
The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of . .
Times 26-Oct-99, Gazette 03-Nov-99, [1999] UKHL 39, [1999] 4 All ER 513, [1999] 3 EGLR 88, (2000) 32 HLR 170, [2000] Fam Law 25, (2000) 79 P and CR D1, [2000] CP Rep 16, [1999] 49 EG 97, [1999] 2 FLR 986, [2000] Lloyd’s Rep Bank 29, [1999] 3 FCR 529, [1999] 1 WLR 1919, [1999] EG 121, [1999] NPC 124
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Times 17-Oct-01, [2001] UKHL 44, [2001] 3 WLR 1021, [2002] 2 AC 773, [2002] HLR 4, [2002] 1 Lloyd’s Rep 343, [2001] NPC 147, [2001] Fam Law 880, [2001] 43 EGCS 184, [2001] 2 All ER (Comm) 1061, [2001] 4 All ER 449, [2001] 2 FLR 1364, [2002] 1 P and CR DG14, [2001] 3 FCR 481

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.79133

Barclays Bank Plc v O’Brien and Another: CA 22 May 1992

A bank leaving a husband to explain a proposed charge over the matrimonial home to his wife to secure his business debts, could not enforce that charge against her. There was a presumption of undue influence in the husband which made the charge defective.
Gazette 15-Jul-1992, [1992] 4 All ER 983, [1993] QB 109
Bailii
Cited by:
Appeal fromBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Gazette 17-Dec-93, Times 22-Oct-93, Independent 22-Oct-93, [1993] 3 WLR 786, [1994] 1 AC 180, [1993] 4 All ER 417, [1993] UKHL 6
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
Gazette 17-Dec-93, Independent 22-Oct-93, Times 22-Oct-93, [1994] 1 AC 200, [1993] 3 WLR 802, [1993] 4 All ER 433, [1993] UKHL 7

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.78212

Barclays Bank Plc v Boulter and Another: HL 26 Oct 1999

The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of misrepresentations and undue influence by a third party, the burden of proof remained on the party making that assertion that the bank had constructive notice of such misrepresentation and or undue influence: ‘In the case of undue influence exercised by a husband over a wife, the burden is prima facie very easily discharged. The wife needs to show only that the bank knew that she was a wife living with her husband and that the transaction was not on its face to her financial advantage. The burden is then upon the bank to show that it took reasonable steps to satisfy itself that her consent was properly obtained. ‘
Lord Slynn of Hadley, Lord Nolan, Lord Steyn, Lord Hoffman, Lord Hutton
Times 26-Oct-1999, Gazette 03-Nov-1999, [1999] UKHL 39, [1999] 4 All ER 513, [1999] 3 EGLR 88, (2000) 32 HLR 170, [2000] Fam Law 25, (2000) 79 P and CR D1, [2000] CP Rep 16, [1999] 49 EG 97, [1999] 2 FLR 986, [2000] Lloyd’s Rep Bank 29, [1999] 3 FCR 529, [1999] 1 WLR 1919, [1999] EG 121, [1999] NPC 124
House of Lords, Bailii
England and Wales
Citing:
Appeal fromBarclays Bank Plc v Victor John Boulter Julie Boulter CA 23-Apr-1997
Onus on bank to disprove constructive notice of spouse’s challenge on possession. . .
Times 25-Apr-97, [1997] EWCA Civ 1481
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Gazette 17-Dec-93, Times 22-Oct-93, Independent 22-Oct-93, [1993] 3 WLR 786, [1994] 1 AC 180, [1993] 4 All ER 417, [1993] UKHL 6
CitedBainbrigge v Browne ChD 1881
Bainbrigge_BrowneChD1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
(1881) 18 ChD 188
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
Gazette 17-Dec-93, Independent 22-Oct-93, Times 22-Oct-93, [1994] 1 AC 200, [1993] 3 WLR 802, [1993] 4 All ER 433, [1993] UKHL 7
CitedBainbrigge v Browne ChD 1881
Bainbrigge_BrowneChD1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
(1881) 18 ChD 188
CitedIn re Nisbet and Potts’ Contract 1905
Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the . .
[1905] 1 Ch 391
CitedIndependent Automatic Sales Ltd v Knowles and Foster 1962
If a pleading alleges all the facts which would, as a matter of law, give rise to constructive notice on the part of the other party of the matters alleged that should be enough to enable the party to argue the legal consequences of the facts . .
[1962] 1 WLR 974
CitedWhitehorn Brothers v Davison CA 1911
It is for the defrauded owner seeking to recover his goods to prove that the purchaser had actual or constructive knowledge of the fraud. The passing of a good title to an innocent purchaser applied when the owner had been induced by false pretences . .
[1911] 1 KB 463

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.78191

Alliance and Leicester Plc v Slayford and Another: CA 12 Oct 2000

Property was transferred into a divorcing husband’s name, and his new partner signed a form disclaiming any rights as against the lender. After possession proceedings, she later asserted that her consent had been obtained by the undue influence of her partner and that her equitable interest was an overriding one. The applicant applied to amend the pleadings to add to the claim for possession a claim against the original chargor for the debt secured.
Held: This was not an abuse of process even though the result might be that the partner’s insolvency came to defeat the new partner’s equitable interest. It was not an abuse of process, where a lender seeking to take possession of a mortgaged property was faced with an assertion of an interest by a resident spouse, for that lender to seek as an alternative, the bankruptcy of the borrower under the loan agreement itself. Such an action was clearly available to them. An occupier in such circumstances could now taking advantage of the more detailed exposition of rights contained in the Act which would be an appropriate way of establishing the protection to be given.
Gazette 26-Oct-2000, Times 19-Dec-2000, [2000] EWCA Civ 257
Bailii
Trusts of Land and Appointment of Trustees Act 1996
England and Wales

Updated: 16 December 2020; Ref: scu.77751

New Sombrero Phosphate Co v Erlanger: CA 26 Feb 1877

Sir George Jessel MR said: : ‘. . persons in a fiduciary position must make a full and fair disclosure when they are about to sell property to those towards whom they stand in that relation’
Sir George Jessel MR
(1877) 5 Ch D 73
England and Wales
Cited by:
At CAErlanger v New Sombrero Phosphate Company HL 1878
Rescission needs Restitutio in Integrum
A syndicate, of which Erlanger (Orse Erlinger) was the head, purchased from an insolvent company an island, said to contain valuable mines of phosphates. Erlanger, who managed the purchase, prepared to get up a company to take over the island and . .
(1878) LR 3 App Cas 1218, [1874-80] All ER 271

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.620169