Bischoff’s Trustee v Frank: 1903

Judges:

Wright J

Citations:

(1903) 89 LT 188

Jurisdiction:

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.
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 19 May 2022; 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.

Citations:

Times 13-Feb-2001, [2000] EWCA Civ 3015, [2001] 1 FCR 21, [2001] 1 FLR 505, [2001] Fam Law 182

Links:

Bailii

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Family, Banking, Land

Updated: 19 May 2022; 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.’

Judges:

Lord Browne-Wilkinson

Citations:

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

Links:

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 . .
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 . .
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 . .
CitedPoosathurai v Kannappa Chettiar PC 1919
. .
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 . .

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 . .
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.
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 . .
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 . .
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 . .
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.

Undue Influence, Banking

Updated: 19 May 2022; 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.

Citations:

Gazette 15-Jul-1992, [1992] 4 All ER 983, [1993] QB 109

Links:

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.
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 . .
Lists of cited by and citing cases may be incomplete.

Banking, Undue Influence

Updated: 18 May 2022; Ref: scu.78212

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’

Judges:

Sir George Jessel MR

Citations:

(1877) 5 Ch D 73

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 18 May 2022; Ref: scu.620169

Morley v Loughnan: 1893

Wright J in the context of this claim for undue influence, relied on a passage from an earlier case in which Wilmot CJ had said, ‘Let the hand receiving [a gift] be ever so chaste, yet, if it comes through a polluted channel, the obligation of restitution will follow it’.

Judges:

Wright J

Citations:

[1893] Ch 736

Jurisdiction:

England and Wales

Cited by:

CitedSoutzos v Asombang and Others ChD 21-Jun-2011
The claimant had obtained a freezing order against the defendants. His claim having been dismissed, the court now considered if and what damages should be paid under the cross-undertaking he had given.
Held: Setting out and applying the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Undue Influence

Updated: 18 May 2022; Ref: scu.441144

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.

Citations:

Gazette 26-Oct-2000, Times 19-Dec-2000, [2000] EWCA Civ 257

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996

Jurisdiction:

England and Wales

Undue Influence, Banking, Land, Financial Services

Updated: 17 May 2022; Ref: scu.77751

Re 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 suggested that the deceased had not properly comprehended what the documents achieved.
Held: The failure by the beneficiary to ensure that her aunt had made a full and informed choice placed her, as executor, under an obligation in conscience to make full compensation to the deceased’s estate even though she was not responsible for any misleading or wrong advice.

Citations:

[2003] WTLR 959

Cited by:

Appeal fromJennings 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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 14 May 2022; Ref: scu.235016

Popowski v Popowski: ChD 2004

Mrs P wanted to set aside a declaration of trust under which she and her late husband had transferred property to her son the defendant, in return for the financial assistance received from him. She asserted undue influence since she and her husband had placed trust and reliance on their son. The arrangements were embodied in a trust deed. Janek was to pay the sums due under the mortgage used to purchase the property, and she and her husband gave Janek their interests in the house reserving only a right to occupy the property rent free until they both died. She said that this had not been fair because she should have had 60% of the beneficial interests because of her entitlement to a 60% discount against its true value at the time of purchase.
Held: The necessary rust and influence had been shown but without Janek’s financial assistance from the claimant could not have purchased the property and therefore would not have achieved the discount. The claimant and her husband had lived in the house rent free for 16 years and the trust deed had accurately reflected the arrangements between the parties. Janek had provided an explanation sufficient to rebut the presumption of undue influence.

Judges:

Richard Sheldon QC

Citations:

[2004] EWHC 668

Jurisdiction:

England and Wales

Undue Influence

Updated: 14 May 2022; Ref: scu.234724

In 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.’

Judges:

Maugham J

Citations:

[1931] 1 Ch 289

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 13 May 2022; Ref: scu.224816

Israel Discount Bank of New York v Hadjipateras: CA 1983

An application was made to enforce a judgment in England. The respondent alleged that he had signed a guarantee under the undue influence of his father.
Held: The Court reversed the decision of the first instance judge. The substance of the decision is that the respondent had deliberately refrained from raising a defence in New York and was therefore not entitled to take the point in the English courts. However, in general, ‘The fact that an agreement was obtained by undue influence, duress or coercion was a reason for an English court to treat a foreign judgment based on that agreement as being invalid or to refuse to enforce the foreign judgment as being contrary to English public policy.’

Citations:

[1984] 1 WLR 137, [1983] 3 All ER 129, [1983] 2 Lloyds Rep 490

Jurisdiction:

England and Wales

Cited by:

CitedSoleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Lists of cited by and citing cases may be incomplete.

Contract, Undue Influence

Updated: 13 May 2022; Ref: scu.219310

Kempson 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 refused to give such a bond but at length ‘consented, on account, as she stated, of Sladden’s ungovernable temper, and the many violent scenes . . . which she had to go through’. She signed the bond in the presence of Ashbee’s solicitor who said he had explained the nature of the bond and was not aware that she was under age. In 1859 and now of age she signed a second bond securing the payment of andpound;600 and interest alleged to be due for principal interest and costs in respect of the previous loan. In 1866 Ashbee obtained judgment against Sladden but agreed not to issue execution if he could get Miss Kempson to sign another bond for the whole amount due on the judgment. This time, now 29, she signed a bond for andpound;705 and interest. In 1872 Miss Kempson’s uncle offered to compound the matter but Ashbee refused and sued Miss Kempson, who filed a bill to set aside the bonds of both 1859 and 1866. Bacon V-C declared both bonds fraudulent as against Ashbee and restrained him from further prosecuting his action at law.
Held: The Court of Appeal in Chancery upheld that decision. The 1859 bond was clearly unenforceable but the court was prepared to proceed on the assumption that, in the absence of the 1859 bond, the 1866 bond might have been held not to have been given under undue influence: ‘The bond was given, as the Plaintiff’s evidence shews, under clear pressure. Here was a creditor saying he would insist on his rights against her and her step-father unless there was a new bond for the sum already due, with arrears of interest, and she was ignorant of the fact that she had only to apply to this Court to get the previous bond declared mere waste paper. Is it possible that this can be held to be a confirmation of the first bond? To constitute a confirmation there must be knowledge of the invalidity of the document. But here there was no knowledge of the invalidity. This bond was inseparably connected with the bond of 1859 . . . and therefore those who are interested under the bond of 1866 are unable to hold it.’

Judges:

Lord Cairns LC, James and Mellish LJJ

Citations:

(1874) LR 10 Ch App 15

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 13 May 2022; Ref: scu.199971

Scotlife 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 the defence was misconceived. The District Judge declined to make a possession order, and gave directions. The claimant appealed to the circuit judge. By the time the appeal was heard Mrs Hedworth had amended her Defence to plead that the claimant’s charge was unenforceable against her since it had been procured by Mr Hedworth’s undue influence, of which the claimant had constructive notice. The judge allowed the claimant’s appeal and made a possession order. On appeal Mrs Hedworth sought to adduce additional affidavit evidence to the effect that if the appeal were allowed she would re-amend her Defence to allege that the claimant’s advance was applied in discharging existing charges which had themselves been procured by the undue influence of Mr Hedworth, of which the claimant had constructive notice. The claimant conceded that if Mrs Hedworth’s Defence were amended to include such allegations it would no longer be appropriate to strike it out.
Held: Dismissing her appeal: ‘I appreciate that counsel for Mrs Hedworth would argue that the fact that a loan by way of mortgage is to be applied for the redemption of prior mortgages does not necessarily establish that the remortgage is to the wife’s advantage because …. the mortgages redeemed may themselves have been procured by undue influence. I am not persuaded, however, by this argument. Indeed, it seems to me that it is contrary to the reasoning in Pitt. The court has to find an equilibrium between the proper protection of the rights of a wife who may be the victim of actual or presumed undue influence on the one hand and on the other hand the furtherance of ordinary business transactions involving mortgages of a matrimonial home in the joint ownership of a husband and wife. The decision in Pitt …. demonstrates that a transaction which involves a remortgage with the application of any surplus funds to a purpose which is to the apparent benefit of the husband and wife would not normally arouse suspicion. In the present case I think the correct approach is to consider what would have been the position had Scotlife been alerted to the fact that these monies were to be applied (save for a very small fraction) to the redemption of earlier mortgages. On this basis, I consider that Scotlife would have been entitled to treat the transaction as an ordinary business transaction. …. As I see it, Scotlife had no reason to question the validity of these earlier mortgages.’

Judges:

Neill LJ

Citations:

(1996) 28 HLR 771

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Housing, Undue Influence

Updated: 13 May 2022; Ref: scu.190507

Howes v Bishop: 1909

The relationship of husband and wife does not bring a case within Class 2(A).

Citations:

[1909] 2 KB 390, CA

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.
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 12 May 2022; Ref: scu.180577

Bank 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 misrepresents in a material respect what is proposed to be the nature of her liability as guarantor, and that, by reason of such misrepresentation, the wife in respect of such matter does not understand the true nature of her liability as expressed in a form of guarantee signed by her.’
Cusen J drew a comparison with equity’s treatment of gifts made by a mistaken donor’ and the ‘long established principles which would preclude enforcement of a guarantee in some cases where the creditor has not disclosed to the intending surety some features of the transaction’.
Cussen J said: ‘In the first place, it is obvious that a large benefit is conferred both on the creditor and the debtor, which, so far as any advantage to the guarantor is concerned, is voluntary, though no doubt ‘consideration’ exists so far as the creditor is concerned, so soon as forebearance is in fact given or advances are in fact made. It is, I think, to some extent by reference to the rule or to an extension of the rule that, in the case of a large voluntary donation, a gift may be set aside in equity if it appears that the donor did not really understand the transaction, that such a guarantee may be treated as voidable as between the husband and wife.’

Judges:

Cussen J

Citations:

[1925] VLR 642

Jurisdiction:

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.
Lists of cited by and citing cases may be incomplete.

Banking, Equity, Undue Influence

Updated: 12 May 2022; Ref: scu.180572

Naidoo and Another v Naidu and Others: CA 1 Nov 2000

The application of the doctrine of undue influence need not be restricted to situations where the party against whom it was alleged had sought to create a benefit for themselves. The vice in the transaction was the abuse by somebody in a position of trust, and of the trust placed in them. The fact that the transaction originated with a third party other than the wrongdoer was irrelevant if that relationship of trust and confidence existed, and it was fair to presume that the relationship had been abused in procuring the transaction.

Citations:

Times 01-Nov-2000

Jurisdiction:

England and Wales

Undue Influence

Updated: 11 May 2022; Ref: scu.84159

National Westminster Bank Plc v Kostopoulos and Another: CA 2 Mar 2000

Where a judge decides that a party has raised a triable argument of undue influence, it should be rare for that assessment to be interfered with on appeal. The judge had given a carefully thought out and detailed explanation of why he had allowed the appeal against strike out, and the matter should proceed.

Citations:

Times 02-Mar-2000

Jurisdiction:

England and Wales

Undue Influence, Banking

Updated: 11 May 2022; Ref: scu.84219

Barclays 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 required to be executed before an independent solicitor, but witnessed by a legal executive with the authority of his solicitor employer was properly executed and counted as having been given under such independent advice.

Judges:

Nourse LJ

Citations:

Times 05-Jan-2000, Gazette 20-Jan-2000, [2001] QB 20

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Updated: 10 May 2022; Ref: scu.78195

Specot v Ageda: 1973

In matters relating to a breach of fiduciary duty, the matter is one of perception as well as substance.

Judges:

Megarry J

Citations:

[1973] Ch 30

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 10 May 2022; Ref: scu.236342

Michael v Cansick: ChD 1 Jul 2004

The father had given his house to a granddaughter. He had declared his intentions and then made a will dividing his remaining estate. The beneficiary’s husband was a former solicitor who had given him occasional advice, including this gift. He had told the beneficiary about this advice but nobody else. After the donor’s death, the granddaughter and her husband were accused of exercising undue influence.
Held: The challenge failed. Whether there had been undue influence was a question of fact in each case. The legal burden of proof lay on the person alleging it. The grandson had first to establish that the father had placed trust and confidence in the granddaughter and her husband in relation to his financial affairs. That would discharge the evidential burden, and call for an explanation. Though it was not clear why he had taken this step, the gift was not so extraordinary as to challenge the explanation given. The relation with the granddaughter’s husband was not in this case sufficient to presume undue influence. He had asked for information not advice. The gift stood.

Citations:

[2004] WTLR 961, [2004] EWHC 1684 (Ch)

Jurisdiction:

England and Wales

Undue Influence

Updated: 10 May 2022; Ref: scu.234721

The Special Trustees of Great Ormond Street Hospital for Children v Rushin, Billing and others: 19 Apr 2000

The deceased had been an elderly and vulnerable widow whose husband had recently died. Her first will left most her estate to claimant trustees, but before her death she substantially diminished her estate by transfers to her carers, the defendants. One had suggested that Mrs Morris should transfer the house (worth over 200,000.00pounds) to her for a noninal sum, and an agreement to look after Mrs Morris, in the house, for the rest of her life. Other substantial gifts and loans were made and the defendant was made a co-signatory on a bank account. The claimant charity sought to set aside the gifts, asserting undue influence.
Held: The special relationship between Mrs Morris and Mrs Rushin, namely that of a carer and a vulnerable person, entitled the court to presume undue influence.

Citations:

Unreported, 19 April 2000

Jurisdiction:

England and Wales

Undue Influence

Updated: 10 May 2022; Ref: scu.234720

Re 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 him. After the mother’s death the older son asked the court to transfer the business and its premises brought back into her estate, saying that, as manager for his mother, the second son was in a fiduciary relationship with her and, as such,was presumed to have used undue influence in dealing with his beneficiary.
Held: The fact that the mother was following what she took to have been her late husband’s wishes was adequate ground for finding for the second son. Also the mother had received adequate legal advice. It was impossible to leap from the label ‘fiduciary relationship’ to the conclusion that all the incidents of an express trusteeship applied. All sorts of relations could be called fiduciary relations by reason of elements of confidence, trust and dependence.
Fletcher Moulton LJ: ‘It is said that the son was the manager of the stores and therefore was in a fiduciary relationship to his mother. This illustrates in a most striking form the danger of trusting to verbal formulae. Fiduciary relations are of many different types; they extend from the relation of myself to an errand boy who is bound to bring me back my change up to the most intimate and confidential relations which can possibly exist between one party and another where the one is wholly in the hands of the other because of his infinite trust in him. All these are cases of fiduciary relations, and the Courts have again and again, in cases where there has been a fiduciary relation, interfered and set aside acts which, between persons in a wholly independent position, would have been perfectly valid. Thereupon in some minds there arises the idea that if there is any fiduciary relation whatever any of these types of interference is warranted by it. They conclude that every kind of fiduciary relation justifies every kind of interference. Of course that is absurd. The nature of the fiduciary relation must be such that it justifies the interference. … In my opinion there was absolutely nothing in the fiduciary relations of the mother and the son with regard to this house which in any way affected this transaction.’ and
‘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.’

Judges:

Fletcher Moulton LJ

Citations:

[1911] 1 Ch 723

Citing:

Appeal fromRe 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 . .

Cited by:

Appealed toRe 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 . .
CitedMurad and Another v Al Saraj and Another CA 29-Jul-2005
An account of profits is available without proof of loss, and the onus is upon the defaulting party to show that profits are not ones for which he should account . .
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 . .
CitedRolls-Royce Power Engineering Plc and Another v Ricardo Consulting Engineers Ltd TCC 2-Dec-2003
. .
Lists of cited by and citing cases may be incomplete.

Trusts, Undue Influence

Updated: 09 May 2022; Ref: scu.222820

Stevens v Newey: CA 12 Jan 2005

The parties had lived together but were now separated and sought orders as to their property. A presumption of undue influence arose because of a trust deed executed without having taken independent advice.
Held: Nothing had been put forward to rebut the presumption of undue influence, and the appeal succeeded. The designated civil judge should consider the nature of a case and the issues which arose before allocating such a case to a district judge.

Citations:

Times 14-Jan-2005

Jurisdiction:

England and Wales

Litigation Practice, Undue Influence

Updated: 09 May 2022; Ref: scu.222847

Yerkey 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. But there is nothing unusual or strange in a wife, from motives of affection or for other reasons, conferring substantial financial benefits on her husband. Although there is no presumption the court will nevertheless note, as a matter of fact, the opportunities for abuse which flow from a wife’s confidence in her husband. The court will take this into account with all the other evidence in the case.

Judges:

Dixon J

Citations:

(1939) 63 CLR 649

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.
Lists of cited by and citing cases may be incomplete.

Undue Influence, Family, Commonwealth

Updated: 08 May 2022; Ref: scu.180581

Midland 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.

Citations:

[1988] 3 All ER 17, CA

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.
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 08 May 2022; Ref: scu.180579

Mutual Finance Ltd v John Wetton and Sons Ltd: 1937

A relative of a forger gave a guarantee in circumstances where the forger had been threatened with prosecution. He now pleaded economic duress.
Held: The guarantee should be set aside. The court considered the distinction between dures and undue influence. Porter J said: ‘Not only is no direct threat necessary, but no promise need be given to abstain from a prosecution. It is enough if the undertaking was given owing to a desire to prevent prosecution and that desire were known to those to whom the undertaking was given. In such a case one may imply (as I do here) a term in the contract that no prosecution should take place . . A threat made by a party to a contract may be illegitimate when coupled with a demand for payment even where the threat is one an action which would otherwise be lawful.’
The line between permissible forms of persuasion and undue influence is ultimately regulated by considerations of public policy.

Judges:

Porter J

Citations:

[1937] 2 KB 389, [1937] 2 All ER 657

Jurisdiction:

England and Wales

Cited by:

CitedProgress Bulk Carriers Ltd v Tube City IMS Llc ComC 17-Feb-2012
The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress. . .
CitedCTN Cash and Carry v Gallaher CA 15-Feb-1993
The buyer paid a sum demanded by the seller who threatened otherwise to withdraw the credit facilities it provided to the buyer. The sum was not in fact due, but the demand had been made honestly. The buyer said the agreement was voidable for . .
Lists of cited by and citing cases may be incomplete.

Contract, Undue Influence

Updated: 08 May 2022; Ref: scu.451443

Tommey v Tommey: FD 1983

W asked the court to set aside a consent financial relief order. She was to transfer her half of the home to H, in return for andpound;8,000 paid by H in settlement of her financial provision. She said that in the negotiations leading up to the agreement H had exercised undue influence over her.
Held: As a matter of law, undue influence was not a good ground to set aside a consent order. She also said that because H had filed no affidavit, the judge had made the order without full knowledge. Balcombe J said: ‘Nor is there substance in another ground, viz. ignorance of relevant facts on the part of the judge. A judge who is asked to make a consent order cannot be compelled to do so: he is no mere rubber stamp. If he thinks there are matters about which he needs to be more fully informed before he makes the order, he is entitled to make such inquiries and require such evidence to be put before him as he considers necessary. But, per contra, he is under no obligation to make inquiries or require evidence. He is entitled to assume that parties of full age and capacity know what is in their own best interests, more especially when they are represented before him by counsel or solicitors. The fact that he was not told facts which, had he known them, might have affected his decision to make a consent order, cannot of itself be a ground for impeaching the order. Accordingly, the wife is not entitled on this ground to have the order of 18 February 1975 set aside.’

Judges:

Balcombe J

Citations:

[1983] Fam 15, [1983] 4 FLR 159

Jurisdiction:

England and Wales

Cited by:

CitedJenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
CitedJudge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
CitedSharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.

Family, Undue Influence

Updated: 07 May 2022; Ref: scu.259835

Lloyds Bank plc v Bundy: CA 1974

‘Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank.’ The defendant and his son were the banks customers over many years. He had been advised that he could not afford to give greater support to his son, but later did so by extending the guarantee, and charging his property. The Bank sought to rely on the guarantee given to a bank by a father to support his son’s existing borrowing. The lending bank was found to have exercised undue influence over the customer. It was inappropriate for the father to give the guarantee because the bank manager knew the father and that thefather would rely upon him.
Held: The court set out to create a general principle of relief against harsh bargains on the ground of inequality of bargaining power.

Judges:

Lord Justice Denning MR, Sir Erich Sachs, Cairns LJ

Citations:

[1975] QB 326, [1974] 3 All ER 757

Jurisdiction:

England and Wales

Cited by:

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 . .
DistinguishedAvon 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.
CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Banking, Undue Influence, Equity

Updated: 06 May 2022; Ref: scu.193356

Bridgeman v Green: 1757

The question before the court was whether certain money, which had been obtained by fraud, ought to be returned to the Plaintiff by a party who had received it, but who was not a party to the fraud. Lord Commissioner Wilmot said, ‘Whoever receives it, must take it tainted and infected with the undue influence and imposition of the person procuring the gift; his partitioning and cantoning it out amongst his relations and friends will not purify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it come through a corrupt, polluted channel, the obligation of restitution will follow it.’

Judges:

Wilmot LC

Citations:

(1757) Wilm 58, [1757] 97 ER 22

Citing:

AffirmedBridgeman v Green 1755
The court was asked whether certain money, which had been obtained by fraud, ought to be returned to the Plaintiff by a party who had received it, but who was not a party to the fraud. . .

Cited by:

CitedPrince Albert v Strange ChD 8-Feb-1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Torts – Other

Updated: 06 May 2022; Ref: scu.448289

Avon 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.
Held: The parents had signed the charge without exercising reasonable care, and their plea of non est factum failed. However the charge was voidable in equity. The plaintiff lender had appointed the son to act as their agents to secure the signatures of the parents and to their disadvantage. The finance company should not be allowed to take advantage of their agent’s deceit.

Judges:

Brandon LJ

Citations:

[1985] 2 All ER 281, [1985] CLY 1289

Jurisdiction:

England and Wales

Citing:

AppliedChaplin and Co Ltd v Brammall CA 1908
The plaintiffs, having agreed to supply goods to the defendant’s husband on credit if his wife would guarantee payment by him of their price, sent to the husband a form of guarantee, in order that he might obtain his wife’s signature to it, leaving . .
CitedSaunders (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 . .
DistinguishedLloyds Bank plc v Bundy CA 1974
‘Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he . .

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.
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 . .
Lists of cited by and citing cases may be incomplete.

Banking, Undue Influence, Equity

Updated: 04 May 2022; Ref: scu.180569

Scott v Bridge and Others: ChD 25 Nov 2020

Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two dwelling-houses, one which the claimant had inherited from her parents, and in which she lived until recently, and one which was acquired by the first and second defendants under the social housing right to buy scheme. The claims are based variously on the doctrines of unjust enrichment, undue influence, resulting and constructive trusts, proprietary estoppel, and mistake.
Held: Although the claimant was entitled to judgment for the sum of pounds 89,500 on unjust enrichment principles, she was not entitled to a proprietary claim as against the third defendant’s bank account or its traceable proceeds.

Judges:

HHJ Paul Matthew

Citations:

[2020] EWHC 3116 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedWisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
CitedTownson v Tickell And Another 6-Nov-1819
A devisee in fee may by deed, without matter of record, disclaim the estate devised.
There is a presumption that, when a gift of property is made, the donee is presumed to accept it unless, upon learning of the gift, the recipient repudiates . .
CitedHoward v Fingall ChD 1853
Vice-Chancellor Stuart said: ‘In order to make a valid gift, there must be perfect knowledge in the mind of the person making the gift of the extent of the beneficial interest intended to be conferred, and of which it is intended to divest oneself . .
CitedStanding v Bowring CA 18-Dec-1885
The Plaintiff, a widow, in the year 1880, caused pounds 6000 Consols to be transferred into the joint names of herself and the Defendant, who was her godson. She did so with the express intention that the Defendant, in the event of his surviving . .
CitedCochrane v Moore CA 29-Apr-1890
Gift of Chattel to be Completed by Delivery
To create a gift, if it be a chattel capable of manual delivery the donor must deliver it to the donee by actually handing it over, or else do some act which in the eye of the law amounts to delivery of possession, as for example handing over some . .
CitedDewar v Dewar ChD 1975
The court was asked whether a payment of pounds 500 by their mother to one of two brothers who were the litigants was to be treated as a gift or as a loan. The evidence showed that the mother always intended it to be a gift, that the son wanted to . .
CitedMeisels v Lichtman and Another QBD 9-Apr-2008
The court considered gifts to charity: ‘Where there is a dispute it seems to me that it is the intentions of the donor nor that will be crucial, rather than the more familiar exercise of ascertaining the intentions of both parties in construing the . .
CitedIn re Diplock CA 1948
S 26 of the Act of 1939 would operate to postpone the running of time in the case of an action at common law to recover money paid under a mistake of fact, and would likewise apply to an analogous claim in equity to recover money paid under a . .
CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
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 . .
CitedWestdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
PreferredShalson and others v Russo and others ChD 11-Jul-2003
Rimer J doubted obiter comments of Lord Brown-Wilkinson: ‘I do not find that an easy passage. As to the first paragraph, a thief ordinarily acquires no property in what he steals and cannot give a title to it even to a good faith purchaser: both the . .
CitedThe Prudential Assurance Company Ltd v HM Revenue and Customs CA 19-Apr-2016
The issues on this appeal all relate to what have been called ‘portfolio holdings’; that is to say dividends paid on shares in foreign companies held as investments, where the investor holds less than 10 per cent of the voting power in the company . .
MentiuonedSinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others CA 29-Mar-2011
The appellant challenged a decision that it was not entitled to a proprietary interest in the proceeds of sale of some shares which had been acquired with the proceeds of a breach of trust. Specifically, the claims gave rise to (i) an issue as to . .
CitedThe Trustee of the Property of FC Jones and Sons v Jones CA 25-Apr-1996
Statute may cause the legal ownership of the bank account to change, for example on bankruptcy of the account holder or holders . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Undue Influence, Evidence

Updated: 04 May 2022; Ref: scu.656364

Poosathurai v Kannappa Chettiar and Others: PC 18 Nov 1919

(Madras)

Citations:

[1919] UKPC 110, [1919] LR 47

Links:

Bailii

Jurisdiction:

England and Wales

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 02 May 2022; Ref: scu.423352

Poosathurai v Kannappa Chettiar: PC 1919

Citations:

[1919] LR 47 1A

Jurisdiction:

Commonwealth

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 02 May 2022; Ref: scu.221026

Tufton v Sperni: CA 1952

To show undue influence the party must show ‘actual domination . . over the mind and will’ of the person affected. (Jenkins LJ) or the influence may be described in terms of the domination by the wrongdoer of the mind and will of the complainant and ‘in which it could fairly be said that the plaintiff’s mind was in effect a mere channel through which the will of the defendant operated’ (Morris LJ)
The categories of fiduciary relationships are not closed, and a fiduciary relationship in respect of a transaction may arise though there has been no anterior relationship between the parties to that transaction.

Judges:

Jenkins LJ, Morris LJ

Citations:

[1952] 2 TLR 516, [1952] WN 439

Undue Influence

Updated: 30 April 2022; Ref: scu.221025

Crowe 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 andpound;310 to Crowe. In 1780 the life tenant was dying and Crowe applied to Ballard to re-purchase the legacy. Ballard revealed he was the purchaser but was only prepared to re-sell the legacy if Crowe made a post-obit bond to pay him (Ballard) andpound;1,800 after the death of Crowe’s father. The bond falsely recited that it was given in consideration of a debt of andpound;900. Crowe’s father died in 1782 and Crowe gave Ballard a new bond for andpound;1,800 with 5% interest. He paid the interest on that bond until 1787 when he offered to pay the money originally due with interest if the bond were released. Ballard refused and brought an action on the bond whereupon Crowe filed a bill for delivery up of the bond on repayment of the money originally advanced. Sir John Scott S-G for Crowe said that the only argument that could be urged was that the 1782 bond and the subsequent payment of interest over a 4 year period were a ‘confirmation’ of the original transaction. Mr Mansfield for Ballard agreed saying:- ‘It is not now a question, what would be the proper justice between the parties, if it had stood upon the original transaction without anything intervening to alter or confirm it.’ His argument was that the 1782 bond was a new contract and not affected by Ballard’s original unconscionable conduct.
Held: Finding for Crowe, the court doubted whether the word ‘confirmation’ was correctly used but held, in any event, that the 1782 bond could not be such a ‘confirmation’. ‘. . . I have attended formerly to the reason of that word ‘confirmation’; and have been at a loss for the principle, upon which the Courts have spoken of such transactions as these, subsequent to the demand arising, as a confirmation. I know, if a gentleman of honour and fortune feels himself bound in honour by the circumstances of a bargain, however disadvantageous, not to rescind it, and, knowing the case, declares, when of full age, not under the terror of distress, that he thinks proper to give a new bond; the circumstance of an honorary engagement, attended with money actually advanced, is sufficient to maintain the possessor of the new bond. But if a man gives a new bond under an idea, that the old one may be enforced against him, at what time is that a confirmation? . . . What I go upon is, that the second bond was not given freely, but upon a consideration, that in his mind carried with it a value, it ought not, and was derived from a fraudulent consideration.’

Judges:

Lord Thurlow LC

Citations:

(1790) 1 Ves Jun 214

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 . .
Lists of cited by and citing cases may be incomplete.

Land, Undue Influence

Updated: 30 April 2022; Ref: scu.199970

Boyse v Rossborough: HL 1857

In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an inference which can justifiably be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean. As to the presence of capacity to make a will: ‘On the first head the difficulty to be grappled with arises from the circumstances that the question is almost always one of degree. There is no difficulty with the case of a raving mad man or drivelling idiot in saying that he is a person incapable of disposing of property; but between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon but at what precise moment twilight becomes darkness is hard to determine.’

Judges:

Lord Cranworth

Citations:

[1857] EngR 299, (1857) 5 HLC 1, (1857) 10 ER 1192, [1857] 6 HLC 2

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoBoyse v Rossborough 5-Dec-1853
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .
See AlsoBoyse v Rossborough 11-Feb-1854
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
See AlsoBoyse v Rossborough 7-Nov-1854
A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .

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. . .
CitedRobin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Wills and Probate

Updated: 29 April 2022; Ref: scu.188022

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’.

Judges:

Dunn LJ, Fox LJ

Citations:

[1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351

Jurisdiction:

England and Wales

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: 20 April 2022; Ref: scu.244663

Mumford v Bank of Scotland: IHCS 29 Sep 1995

There was no undue influence presumption to fix a bank with notice of husband’s misrepresentation of the position to wife giving security.

Citations:

Times 29-Sep-1995

Citing:

Appeal fromMumford v Bank of Scotland; Smith v Same OHCS 4-Aug-1994
Bank has no duty in Scotland to wife of borrower securing debt on house. . .

Cited by:

Appealed toMumford v Bank of Scotland; Smith v Same OHCS 4-Aug-1994
Bank has no duty in Scotland to wife of borrower securing debt on house. . .
Lists of cited by and citing cases may be incomplete.

Undue Influence

Updated: 09 April 2022; Ref: scu.84123

Langton v Langton and Another: ChD 24 Feb 1995

The doctrine of ‘unconscionable bargain’ does not extend to gifts obtained by undue influence.

Citations:

Times 24-Feb-1995, [1995] 2 FLR 890

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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Undue Influence

Updated: 09 April 2022; Ref: scu.82950

Bank of Cyprus (London) Ltd v Markou and Another: ChD 8 Feb 1999

W, an equal shareholder with her husband and secretary of company was asked by him to sign an unlimited guarantee and charge when the company’s bank account moved between branches. She was not given independent advice and took no real part in the company.
Held: Undue influence by the husband had been established, and the bank was fixed with notice. The equal shareholding was no complete answer to her claim of manifest disadvantage in the transaction. The bank knew that she took no practical part in the business, and that was enough to put them on enquiry.

Judges:

John Jarvis QC J

Citations:

Gazette 10-Feb-1999, [1999] 2 All ER 707, Independent 08-Feb-1999

Undue Influence, Banking

Updated: 08 April 2022; Ref: scu.78153

Goldsworthy 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 considerable involvement with the farm. The plaintiff gave a general power to the son who now sought to set aside the transactions as having been obtained by undue influence.
Held: A presumption of undue influence could be raised where the gift was so large or improvident that it could not be accounted for from mere friendship. Equity has refused to put limits on what is to be held to be a fiduciary relationship and to which the presumption of undue influence can apply. There has to exist a degree of trust and confidence such that: (Nourse LJ) ‘The party in whom it is reposed, either because he is or has become an adviser of the other or because he has become entrusted with the management of his affairs or every day needs or for some other reason, is in a position to influence him into effecting the transaction of which complaint is later made.’ and acquiescence in its proper sense involves ‘a standing by so as to induce the other party to believe that the wrong is assented to.’
Parker LJ said: ‘Upon whatever precise basis it is sought to uphold a transaction which was originally obtained by undue influence it is an essential ingredient that it would be inequitable to allow the influenced party to set aside the transaction.’
Nourse LJ also said: ‘Undue influence is of two kinds: (1) express or, as it is nowadays more usually known, actual undue influence, and (2) that which in certain circumstances is presumed from a confidential relationship; by which in this context is meant a relationship wherein one party has ceded such a degree of trust and confidence as to require the other, on grounds of public policy, to show that it has not been betrayed or abused. In cases where there is no confidential relationship actual undue influence must be proved. In cases where there is such a relationship it is sometimes alleged, but need not be proved and may never have occurred. Occasionally, even where there is no direct evidence of influence, it is found that there is both a confidential relationship and actual undue influence . . ‘ and ‘ . . Because they have occasioned little or no debate on this appeal, three further general observations may be briefly made. First, it is not every relationship of trust and confidence to which the presumption applies. No generalisation is possible beyond the definition already attempted. Secondly, with relationships to which it does apply the presumption is not perfected and remains inoperative until the party who has ceded the trust and confidence makes a gift so large, or enters into a transaction so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act. Although influence might have been presumed beforehand, it is only then that it is presumed to have been undue. Thirdly, in a case where the presumption has come into operation the gift or transaction will be set aside, unless it is proved to have been the spontaneous act of the donor or grantor acting in circumstances which enable him to exercise an independent will and which justify the court in holding that the gift or transaction was the result of a free exercise of his will.’

Judges:

Nourse LJ, Parker LJ

Citations:

[1987] Ch 378, [1987] 2 WLR 133

Statutes:

Agricultural Holdings Act 1948 8

Jurisdiction:

England and Wales

Citing:

AppliedAiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
CitedIn re Craig, Decd 1971
Undue influence was found to have been exercised by a secretary companion over her elderly employer. . .

Cited by:

CitedX v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .
CitedBillington (By Billington Her Next Friend) Billington, Warburton v Blackshaw CA 16-Dec-1997
The court had set aside a conveyance at an undervalue by a mother to one of her children. There was evidence to doubt her capacity at the time.
Held: There was evidence of senile dementia, and the presumption applied. The judge had dealt . .
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 . .
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.

Equity, Undue Influence, Landlord and Tenant

Updated: 23 March 2022; Ref: scu.182897

Takhar v Gracefield Developments Ltd and Others: SC 20 Mar 2019

The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set that judgment aside having been obtained by fraud. To support the allegation she brought evidence not available at the first trial that the defendants had forged her signature on a document. The defendants requested its strike out as an abuse of process, saying that reasonable diligence would have obtained the fresh evidence before the original trial. The judge refused the application and allowed the claim to proceed to trial, holding that the reasonable diligence condition did not apply where a party sought to set aside a judgment on the grounds of fraud, and there had been no abuse of process. The CA allowed the defendants’ appeal, holding that reasonable diligence was required by the claimant.
Held: The appeal succeeded. A person who applies to set aside an earlier judgment on the basis of fraud does not have to demonstrate that the evidence of this fraud could not have been obtained with reasonable diligence in advance of the earlier trial.
Fraud as such had not been pleaded at the first trial, and therefore this was not a relitigation of the issues at that first trial, and the authorities on which the defendant relied did not go to a proposition that, in cases where it is alleged that a judgment was obtained by fraud, it may only be set aside where the party who makes that application can demonstrate that the fraud could not have been uncovered with reasonable diligence in advance of the judgment. The law does not expect people to arrange their affairs on the basis that others may commit fraud.
An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action. This cause of action is independent of the cause of action asserted in the earlier proceedings and there can therefore be no question of cause of action estoppel. There is also no question of issue estoppel, because the basis of the action is that the earlier decision is vitiated by fraud and cannot bind the parties.

Judges:

Lord Kerr, Lord Sumption, Lord Hodge, Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Kitchin

Citations:

[2019] UKSC 13, [2019] 2 WLR 984, [2019] 3 All ER 283, [2019] WLR(D) 198, UKSC 2017/0072

Links:

Bailii, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Oct 10 am Video, SC 2018 Oct 10 pm Video

Statutes:

Income Taxes Act 2007 132, Taxes Management Act 1970 9A Sch1A

Jurisdiction:

England and Wales

Citing:

At first InstanceTakhar v Gracefield Developments Ltd and Others ChD 6-May-2015
The claimant alleged that the defendant had obtained its judgment in earlier proceedings by fraud. The defendant now applied for the claim to be dismissed as an abuse of process. . .
Appeal fromTakhar v Gracefield Developments Ltd and Others CA 21-Mar-2017
. .
CitedHip Foong Hong v H Neotia and Co PC 15-Jul-1918
An appellate Court has inherent power to set aside a judgment obtained through fraud. Lord Buckmaster described how an appellate court should deal with an allegation that an earlier judgment had been obtained by fraud: ‘Where a new trial is sought . .
CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedVirgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
CitedHIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
CitedKirby v the Owners of the Scindia (The ‘Marie Joseph’) PC 23-Jun-1866
A Bill of lading for the delivery of goods to order and assigns, is a negotiable instrument, which by indorsement and delivery passes the property in the goods to the indorsee, subject only to the right of the unpaid vendor to stop them in transitu. . .
CitedJonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
CitedLazarus Estates Ltd v Beasley CA 1956
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
CitedClone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers and Managers Appointed) 21-Mar-2018
. .
CitedMcDonald v McDonald 13-Aug-1965
HCA – Appeal – New Trial – Fresh evidence – Tending to prove verdict obtained by fraud – Principles of grant of new trial on grounds of fraud and discovery of fresh evidence.
the High Court of Australia applied Hip Foong Hong and Jonesco v . .
CitedToubia v Schwenke 2002
Supreme Court of New South Wales – Court of Appeal
‘In an action for fraud, a plaintiff must prove that he was deceived but need not prove that he was diligent.’ Handley JA continued: ‘Where the action seeks the judicial rescission of a . .
CitedOwens Bank Ltd v Bracco and Another (No2) HL 17-Jun-1992
The bank had obtained judgment in St Vincent to recover a loan. It now sought to register the judgment here for enforcement. The defendant wanted to argue that the judgment had been obtained by fraud, and to resist registration of the judgment. The . .
CitedCallaghan v Hanson-Fox (Andrew) FD 1992
H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably . .
CitedThe Ampthill Peerage Case HL 1977
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . .
CitedArnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
CitedGould v Vaggelas 1984
Brennan J said: ‘A knave does not escape liability because he is dealing with a fool.’ . .
CitedMcIlkenny v Chief Constable of the West Midlands CA 1980
The appellant had been convicted of an IRA bombing, causing loss of many lives. The appellant and his other co-accused alleged that their confessions had been induced by police violence. The trial judge ruled that their confessions were voluntary . .
CitedMontefiori v Montefiori 1746
A note, given fraudulently, to carry on a marriage treaty, shall be good against the drawer, though given without any consideration.
Lord Mansfield said: ‘no man shall set up his own iniquity as a defence, any more than as a cause of action’. . .
CitedBoswell v Coaks (No 2) 1894
An English judgment is impeachable in an English court on the ground that the first judgment was obtained by fraud but only by the production and establishment of evidence newly discovered since the trial and not reasonably discoverable before the . .
CitedRedgrave v Hurd CA 1881
The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the . .
CitedPhosphate Sewage Co (Ltd) v Molleson (Peter Lawson and Son’s Trustee) HL 8-Jul-1879
Res judicata – Competent and Omitted – Case of a Claimant in a Sequestration making a Second Claim.
Averments in two successive claims in a sequestration in consequence of which – affirming judgment of Court of Session – the plea of res . .
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 . .
CitedFlower v Lloyd CA 11-Jun-1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .

Cited by:

See AlsoTakhar v Gracefield Developments Ltd and Others ChD 23-Oct-2020
The Claimant seeks to set aside a judgment obtained against her by the Defendants in 2010 in an earlier action – allegation that new evidence of forgery of signature. . .
See AlsoTakhar v Gracefield Developments Ltd and Others (Consequential Orders) ChD 11-Nov-2020
. .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Evidence

Updated: 23 March 2022; Ref: scu.634789

Burton v Walters: CA 15 Jun 2016

The defendant sought leave to appeal against an order for the possession of his house under a charge given to secure loans, arguing that the judge had misdirected himself as to the burden of proof on his claim of undue influence.
Held: The argument was in fact an attempt to challenge findings of fact.

Hallett LJ
[2016] EWCA Civ 675
Bailii
England and Wales

Undue Influence

Updated: 22 January 2022; Ref: scu.568619

Cowderoy v Cranfield: ChD 24 Jun 2011

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
England and Wales
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: 15 January 2022; Ref: scu.441216

Bainbrigge v Browne: ChD 19 May 1881

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 volunteers did not have the requisite notice of the undue influence and were entitled to enforce their security.
Fry J said that a vitiating circumstance would operate: ‘against the person who is able to exercise the influence (in this case it was the father) and in my judgment, it would operate against every volunteer who claimed under him, and also against every volunteer who claimed under [the person who had exercised undue influence], and also against every person who claimed under him with notice of the equity thereby created, or with notice of the circumstances from which the court infers the equity. But, in my judgment, it would operate against no others; it would not operate against a person who is not shown to have taken with such notice of the circumstances under which the deed was executed.’ Though there here was no direct evidence of undue pressure by the father, there were circumstances ‘from which the court will infer pressure and undue influence.’ None of the children were entirely emancipated from their father’s control, and none conversant with business. These circumstances cast the burden of proof upon the father who had made no attempt to discharge that burden, and did not appear. The children’s claim succeeded.

Fry J
(1881) 18 ChD 188, [1881] UKLawRpCh 148
Commonlii
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.
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 . .
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 . .
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 . .
CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
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

Updated: 15 January 2022; Ref: scu.179882

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 19-May-1881
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: 15 January 2022; Ref: scu.514976

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:
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.
CitedBainbrigge v Browne ChD 19-May-1881
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 . .
CitedBainbrigge v Browne ChD 19-May-1881
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 . .
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 . .
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 . .
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 . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Updated: 15 January 2022; Ref: scu.78191

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 19-May-1881
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: 15 January 2022; Ref: scu.78210

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 19-May-1881
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: 15 January 2022; Ref: scu.166567

Tomson v Judge: 25 Jun 1855

A, who was proved to have entertained feelings of peculiar personal regard for B, his solicitor, conveyed to him certain rea1 estate by a deed, on the face of it a purchase deed the consideration was andpound;1000, the real value upwards of andpound;1200. B. produced evidence to shew that no money passed ; that the transaction was never intended to be a purchase, but a gift for his services and from affection. B. had himself prepared the deed, and A. had no other advice. Held, that the rule is absolute that a solicitor cannot sustain a gift from his client made pending the relation of solicitor and client; and the deed was set aside.
Kindersley V-C said the solicitor must show that: ‘the transaction was perfectly fair, that the client knew what he was doing, and that a fair price was given’.

Kindersley VC
[1855] EngR 631, (1855) 3 Drew 306, (1855) 61 ER 920
Commonlii
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Undue Influence

Updated: 10 January 2022; Ref: scu.292553

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 19-Nov-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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence, Legal Professions

Updated: 05 January 2022; Ref: scu.449871

Baudains v Richardson: PC 1906

The Board considered the quality of the influence necessary to establish undue influence: ‘Influence may be degrading and pernicious and yet not undue influence in the eyes of the law’

Lord MacNaughten
[1906] AC 169
England and Wales
Citing:
ApprovedWingrove v Wingrove 19-Nov-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 . .

Cited by:
CitedCraig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
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, . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Wills and Probate

Updated: 05 January 2022; Ref: scu.213659

Killick 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 favour. The court was asked to deal with the matter on affidavit evidence alone, the first defendant failing to appear to give evidence to defend the will.
Held: A judge in a contested probate case had an inquisitorial function seeking truth, and should be ready to see through attempts to manoeuvre the court. It was for a party who asserted undue influence to prove it. Where there was evidence of improper influence, the additional presence of some enfeeblement in the testator would make it easier to find that such influence was ‘undue’, but evidence of such infirmity does not itself establish undue influence. Adverse inferences should not normally be drawn, but the facts here allowed such an inference of undue influence. The fact that the defendant did not appear at court was not conclusive against him.

James Munby QC
Times 30-Apr-1999, Independent 10-May-1999, (2000) 1 WTLR 41
Citing:
CitedBoyse v Rossborough HL 1857
In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .
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 . .
CitedWingrove v Wingrove 19-Nov-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 . .
CitedCraig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
CitedFreeman v Cox 1878
. .

Cited by:
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: 05 January 2022; Ref: scu.82774

Craig v Lamoureux: HL 1920

The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an inference which can justifiably be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean . . It is also important in this connection to bear in mind that which was laid down by Sir James Hannen in Wingrove v Wingrove (1885) 11 PD 81 and quoted with approval by Lord MacNaughten in delivering the judgment of this Board in Baudains v Richardson (1906) AC 169, and it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained.’

Viscount Haldane
[1920] AC 349
England and Wales
Citing:
CitedBaudains v Richardson PC 1906
The Board considered the quality of the influence necessary to establish undue influence: ‘Influence may be degrading and pernicious and yet not undue influence in the eyes of the law’ . .
CitedWingrove v Wingrove 19-Nov-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 . .

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 . .
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. . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Wills and Probate

Updated: 05 January 2022; Ref: scu.213658

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
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 19-Nov-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 . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 05 January 2022; Ref: scu.381738

Wingrove v Wingrove: 19 Nov 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 be undue influence in the eyes of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quiteness’ sake, to do anything. This would equally be coercion, though not actual violence.
These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such condition, that if he could speak his wishes to the last, he would say ‘this is not my wish, but I must do it’.
There remains another general observation that I must make and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’

Sir James Hannen
[1885] 11 PD 81, [1885] UKLawRpPro 46
Commonlii
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 . .
ApprovedBaudains v Richardson PC 1906
The Board considered the quality of the influence necessary to establish undue influence: ‘Influence may be degrading and pernicious and yet not undue influence in the eyes of the law’ . .
CitedCraig v Lamoureux HL 1920
The House considered the facts to be established before a will could be set aside as having been obtained by undue influence. Viscount Haldane said: ‘As was said in the House of Lords when Boyce v Rossborough (1856) 6 HLC 2, 49, was decided, in . .
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 . .
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 . .
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.

Undue Influence, Wills and Probate

Updated: 05 January 2022; Ref: scu.188024

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 6-Jul-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: 18 December 2021; Ref: scu.471578

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 6-Jul-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.

Wills and Probate, Estoppel, Undue Influence

Updated: 18 December 2021; Ref: scu.590780

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
England and Wales
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 . .

Lists of cited by and citing cases may be incomplete.

Trusts, Undue Influence

Updated: 13 December 2021; Ref: scu.266471

Wright 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 fiduciary relation of solicitor and client), the moment the relation is established, there arises a presumption of influence, which presumption will continue as long as the relation, such as that of solicitor and client, continues, or at all events until it can be clearly inferred that the influence had come to an end.’ and ‘It is perfectly plain that in the case of a gift the rule applied by the Court of Equity is much more stringent . . than the rule that is applied in the case of a bargain or a contract’
Stirling LJ said: ‘The rules of the Court require this to be proved in a transaction of sale in which the solicitor is a purchaser-first, the client must be fully informed; secondly, he must have competent independent advice; and, thirdly, the price which is given must be a. fair one. The onus of proving all this lies on the solicitor.’
Cozens Hardy LJ said: ‘Assuming that the transaction is to be treated as a sale by the plaintiff to his solicitor, Mr. Carter .. I am clearly of opinion that it rests upon Mr. Carter to justify the sale and to shew that ‘the transaction was perfectly fair, that the client knew what he was doing, and that a fair price was given’.

Vaughan Williams, Stirling, Cozens Hardy LJJ
[1903] 1 Ch 27
England and Wales
Citing:
ApprovedPowell 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 . .
CitedTomson v Judge 25-Jun-1855
A, who was proved to have entertained feelings of peculiar personal regard for B, his solicitor, conveyed to him certain rea1 estate by a deed, on the face of it a purchase deed the consideration was andpound;1000, the real value upwards of . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Legal Professions

Updated: 06 December 2021; Ref: scu.224820

Powell 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 solicitor is instructed to advise a person who may be subject to the undue influence of another he must bear in mind that it is not sufficient that she understands the nature and effect of the transaction if she is so affected by the influence of the other that she cannot make an independent decision of her own. It is not sufficient to explain the documentation and ensure she understands the nature of the transaction and wishes to carry it out. He must arrange independent advice if necessary.

Farwell J
[1900] 1 Ch 243
England and Wales
Cited by:
ApprovedWright 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 . .
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 . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Legal Professions

Updated: 06 December 2021; Ref: scu.224819

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

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

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

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

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

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

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

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

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

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