The court has revisited the questions that arise upon allegations of undue influence. It has reviewed the settled principles applied to determine whether there has been a full, free and informed decision of the individual allegedly unduly influenced, or not.

In Hackett v Crown Prosecution Service and another, the claimant - an elderly deaf and dumb lady - transferred her property to the sole name of one of her sons for no consideration. The son had taken her to a solicitor to arrange the transfer of title. The son subsequently had a confiscation order made against him under the Criminal Justice Act and a receiver was to be appointed to realise his assets, including the property. The claimant commenced proceedings to set aside the transfer of the property on the basis of, among other things, undue influence.

The court held that the following questions arose on the issue of undue influence:

  1. Was the relationship between the claimant and the son (or whoever asserted the alleged undue influence) such that a potential claim of presumed undue influence arose?
  2. If so, did the transaction in question call for evidence of the free exercise of the will of the claimant as a result of full, free and informed thought?
  3. If so, could the party seeking to counter the inference of undue influence discharge the evidential burden and provide a satisfactory explanation?

The established principles that are applied in determining whether a full, free and informed decision was taken are:

  • Where independent advice was given, it had to be given with knowledge of all relevant circumstances and be such as would have been given by a competent and honest solicitor acting solely for the party allegedly unduly influenced.
  • That requirement was unlikely to be satisfied where the advice was given at a meeting with the party allegedly asserting the undue influence present.
  • The advice given should have been such that the recipient was able to reach a decision knowing the nature and the consequences of what they were being asked to do.
  • The advice was not independent where the solicitor was acting for both the party alleging undue influence and the party allegedly asserting that undue influence.
  • Where the advice was inadequate, it might not rebut the presumption.

In the instant case, there was a relationship of presumed undue influence. The transfer of the property was a substantial transaction to the claimant's detriment and the transfer solely to one son needed explanation. Evidence of wrongdoing or of the claimant having been cheated was not required. The issue was whether the claimant had been released from the influence of the son when she transferred the property to him.

An objective analysis of the evidence was required. The fact that legal advice had been received was important but not necessarily decisive. Here, the legal advice had been inadequate to establish that the claimant's decision was based on free and informed thought. The claim based on undue influence would be allowed.

Things to consider

This is a useful review of the main questions and principles involved in determining whether an allegation of undue influence might succeed.