undue influence

Question 1

definition

Answer 1

means the power or capacity to have an effect on someone’s
behaviour
Note: Influence is “undue” when it is inappropriate or excessive.

Question 2

two general categories

Answer 2

Actual undue influence: requires proof of psychological pressure (short of a threat).

Presumed undue influence: abuse of a confidential relationship

Question 3

actual undue influence

Answer 3

First, the complainant’s free will
must have been impaired by the
defendant’s unconscionable
conduct.
Second, the undue influence
must have caused the victim to
enter into the transaction.
NOT manifesting disadvantage
(modern)

Question 4

2. actual undue influence

Answer 4

2. Causation
   * Not a “but for” test
   * Hewett v First Financial Group Plc [2010] EWCA Civ 312 at [34]
   * The undue influence need not be “the reason” or the clinching
   reason. It is sufficient that the undue influence “was part of the
   process” by which the victim’s consent to the transaction was
   obtained.

Question 5

presumed undue influence
purpose

Answer 5

To fill in an evidential gap.
* Etridge (No 2) – Lord Nicholls
* In cases of the second form of undue
influence described by Lord Nicholls,
* “the influence one person has over another
provides scope for misuse without any
specific overt acts of persuasion. The
relationship between two individuals may be
such that, without more, one of them is
disposed to agree a course of action
proposed by the other.”
* In such a case, it would be difficult, if not
impossible for the claimant to be able to
provide direct evidence of abuse of influence
by the stronger party. The courts of equity
introduced the presumption to plug this
evidential gap.

Question 6

presumed- two requirements third rebuttal

Answer 6

A pre-existing relationship between
the parties in which one party has
acquired influence over the other –
a relationship of influence.
the transaction complained of must
be one that calls for explanation.
If these two requirements are
satisfied the presumption of undue
influence is raised and the burden
of proof shifts to the defendant to
rebut the presumption.

Question 7

presumed undue influence elements

Answer 7

Special relationship
- Specific relationships
- necessary to show transaction calls for
explanation
- the burden of proof shifts to the defendant to
rebut the presumption
2B

No special relationship
- necessary to prove one party placed trust
and confidence in other party
- necessary to show transaction calls for
explanation
- the burden of proof shifts to the defendant to
rebut the presumption