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