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
England and Wales
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