There is no presumption that equality is to be preserved when it comes to making gifts of assets. However, claims that undue influence has been applied by the recipient of largesse are not uncommon and are the source of much acrimony in families.

The facts of a recent case were that a woman in her 70s appointed her son to be her attorney. Acting in this capacity, he sold her house in 1993. The net proceeds of the sale were paid to the attorney under instructions from his mother. The attorney’s sister claimed a share in the proceeds of sale, alleging that her brother had used undue influence over their mother to have the sale proceeds remitted to him.

In this case, the instructions for the sale of the house were given by the mother directly to her solicitor, who gave evidence that she was well aware of what she was doing and the consequences thereof. However, since the transaction had no benefit to the woman herself and clearly was of benefit to her attorney son, it did require explanation. The gift of the sale proceeds was substantial and left the woman in the position of no longer being able to buy a property of her own if she so wished.

Evidence was given of the woman’s strength of character and the fact that she had shown no regret over giving the sum to her son. One other salient piece of evidence was that the woman was aware that her son had lent his sister money to finance her business, which had failed.

The court ruled that there were insufficient grounds to conclude that undue influence had been brought to bear.