Schrader v Schrader: ChD 11 Mar 2013

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 11 November 2021; Ref: scu.471578

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

Cowderoy v Cranfield: ChD 24 Jun 2011

cowderoy_cranfieldChD2011

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Updated: 01 November 2021; Ref: scu.441216

Marsh v Tyrrell: 1828

Revocation of Earlier Will needs Knowleedge

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence

Leading Case

Updated: 01 November 2021; Ref: scu.219626

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Leading Case

Updated: 31 October 2021; Ref: scu.78210

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cheese v Thomas: CA 24 Aug 1993

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

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

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

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

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

Thompson v Foy: ChD 20 May 2009

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

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

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

Birmingham City Council v Forde: QBD 13 Jan 2009

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

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

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

NA v MA: FD 24 Nov 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Sombrero Phosphate Co v Erlanger: CA 26 Feb 1877

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

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

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’.
Wright J
[1893] Ch 736
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 . .
[2011] EWHC 1582 (Ch)

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.441144

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.
Nourse LJ
Times 05-Jan-2000, Gazette 20-Jan-2000, [2001] QB 20
England and Wales
Citing:

Cited by:

  • Appeal from – 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 . .
    Times 17-Oct-01, [2001] UKHL 44, [2001] 3 WLR 1021, [2002] 2 AC 773, [2002] HLR 4, [2002] 1 Lloyd’s Rep 343, [2001] NPC 147, [2001] Fam Law 880, [2001] 43 EGCS 184, [2001] 2 All ER (Comm) 1061, [2001] 4 All ER 449, [2001] 2 FLR 1364, [2002] 1 P and CR DG14, [2001] 3 FCR 481

These lists may be incomplete.
Updated: 07 December 2020; Ref: scu.78195

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.
[2004] WTLR 961, [2004] EWHC 1684 (Ch)
England and Wales

Updated: 05 December 2020; Ref: scu.234721

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.
References: Times 30-Apr-1999, Independent 10-May-1999, (2000) 1 WTLR 41
Judges: James Munby QC
This case cites:

  • Cited – 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 . .
    ([1857] EngR 299, , (1857) 5 HLC 1, (1857) 10 ER 1192, [1857] 6 HLC 2)
  • Cited – 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 . .
    ([1868] LR 1 P and D 481)
  • Cited – Wingrove v Wingrove 1885
    To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
    Sir James Hannen said: ‘To . .
    ([1885] 11 PD 81)
  • Cited – 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 . .
    ([1920] AC 349)
  • Cited – Freeman v Cox 1878
    . .
    ((1878) LT 8 ChD 148)

This case is cited by:

  • Cited – 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 . .
    (, [2011] EWHC 3250 (Ch))

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.82774

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.
References: Gazette 10-Feb-1999, [1999] 2 All ER 707, Independent 08-Feb-1999
Judges: John Jarvis QC J

Last Update: 21 November 2020; Ref: scu.78153

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.
References: Times 29-Sep-1995
This case cites:

This case is cited by:

These lists may be incomplete.
Last Update: 21 November 2020; 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.
References: Times 24-Feb-1995, [1995] 2 FLR 890
This case is cited by:

  • 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 . .
    (, [2004] EWHC 2258 (Ch), [2005] WTLR 119)
  • Cited – Forsdike v Forsdike CA 21-Feb-1997
    The claimant appealed dismissal of his claim to set aside a transfer by way of gift by his father on the basis of an alleged undue influence.
    Held: The judges was entitled to make the findings he had done, and to be impressed by the spacing of . .
    (, [1997] EWCA Civ 1066)

These lists may be incomplete.
Last Update: 21 November 2020; Ref: scu.82950

Honeyman’s Executors v Sharp; scs 14 Mar 1978

References: 1978 SC 223, [1978] ScotCS CSOH_4, 1979 SLT 177
Links: Bailii
Coram: Lord Maxwell
The action concludes for declarator that a purported gift by the deceased to the defender of four valuable paintings by the French artist Boudin falls to be reduced and for certain consequential relief. Though the word ‘undue’ is not used in the pursuers’ pleas-in-law, the action is in substance laid on the principle usually described as ‘undue influence.’