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.’
Judges:
Lewison J
Citations:
[2009] EWHC 1076 (Ch)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – 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 . .
Cited – Turkey v Awadh and Another CA 8-Mar-2005
. .
Cited by:
Cited – 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, . .
Applied – Link 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 . .
Lists of cited by and citing cases may be incomplete.
Undue Influence, Land
Updated: 26 July 2022; Ref: scu.346246