Undue influence in the family

01/06/2012

Undue influence may apply to a wide variety of transactions: for example, gifts, transfers, loans, guarantees and so on. It is particularly likely to be in issue regarding transactions within the family. In part A I summarise the main principles developed in the case law. In part B I consider eight recent cases involving family members in typical situations (e.g. spouses’ joint re-mortgage of the matrimonial home, cohabitants’ property transactions, gifts from elderly mothers to adult children), which are informative examples of the doctrine’s operation.

Part A:- A summary of the principles
Part B:-  Some recent cases

Part A: A summary of the principles

1. The objective of the doctrine of undue influence is to ensure that the influence of one person ("the donee") over another ("the donor") is not abused. It may apply to a wide variety of transactions, for example, gifts, transfers (especially at an undervalue), loans, guarantees &c.
2. If the donor intends to enter into a transaction, but the intention was produced by means which lead to the conclusion that the intention thus procured ought not fairly to be treated as the expression of the donor's free will, the law will not permit the transaction to stand. A transaction may be set aside, even though the conduct of the person who benefits from it could not be criticised as wrongful.
3. If the donee (for example, a mortgage lender or a member of the extended family) is not the party who exercises undue influence then, unless the donee is a volunteer, the transaction will only be set aside if the donee has actual or constructive notice of the undue influence.
4. Broadly, there are two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats but it may extend to every case where undue influence can be established by positive proof that consent was procured by influence in a way that is unconscionable, such as deliberate concealment of information. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage.
5. The principle is not confined to abuse of trust or confidence, also extending to the exploitation of the vulnerable. There is no single touchstone for determining when it comes into play. Its essence could be described as trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other – although none of those descriptions is perfect or all-embracing.
6. Disadvantage to the donor is not a necessary ingredient of a claim based on undue influence, although in practice questions of undue influence are not likely to arise as regards an innocuous transaction. However, it may have an evidential value, because it is relevant to the questions whether any allegation of abuse of confidence can properly be made, and whether any abuse actually occurred. Nevertheless, it is settled that a person who proves he entered a transaction as a result of actual undue influence is entitled to relief without having to show in addition that the transaction was disadvantageous to him.
7. Whether a transaction has been brought about by undue influence is a question of fact. Although the cases (and the textbooks) speak of “presumed undue influence” and “actual undue influence” these are no more than different ways of proving the same thing. In the former case undue influence is proved with the aid of an evidential presumption. In the latter case it must be proved without any such presumption.
8. The legal burden of proving undue influence rests on the person alleging it. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.
9. If the claimant proves 
   (a) that the donor placed trust and confidence in the donee or that the donee acquired ascendancy over the donor (i.e. a relationship of influence), and 
   (b) that the transaction calls out for explanation, 
   the claimant has discharged an evidential burden, which will also enable an inference of undue influence to be drawn, and thus satisfy the legal burden, unless the donee produces evidence to counter the inference which would otherwise be drawn.
10. In such a case it is up to the donee to prove that the transaction was not procured by an abuse of his position of influence but was rather the free exercise of the will of the other party as a result of full, free and informed thought.
11. Not all fiduciary relationships are relationships of influence, nor are all relationships of influence relationships of trust and confidence either. However, in some categories of relationship, the law irrebuttably presumes that a relationship of influence exists. For example, parent and child (but not child as against parent), guardian and ward, trustee and beneficiary, solicitor and client, religious, medical and spiritual advisers and their followers or patients. Outside the established categories, the relationship of influence must be proved.
12. It is now settled that there is no presumption of a relation of influence as between husband and wife. It is unlikely that the historic presumption as between fiancé and fiancée persists. Although it has been said that the list of categories is not closed, it does not seem that any relationship was added in the twentieth century. It was made clear, in an unreported 2001 case, that the presumption did not apply to accountant and client.
13. In order to determine whether a transaction is explicable in terms other than undue influence, it is necessary to look at it in its context and to see what its general nature was and what it was trying to achieve for the parties.
14. This is simply a question of evidence and proof. At the end of the day, after trial, there will either be proof of undue influence or that proof will fail and it will be found that there is no undue influence. In the former case, whatever the relationship between the parties and however the influence was exerted, there will have been found to have been an actual case of undue influence. In the latter there will be none.
15. Proof that the donor received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a donor a proper understanding of what s/he is about to do.
16. The participation of a solicitor is not a precaution which is guaranteed to work in every case. The court must be satisfied that the advice and explanation by, for example, a solicitor, was relevant and effective to free the donor from the impairment of the influence on his free will and to give him the necessary independence of judgment and freedom to make choices with a full appreciation of what he was doing: advice such as a competent adviser would give, if acting solely in the donor’s interests.
17. A person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case.

Part B. Some recent cases

I summarise below six recent cases concerning undue influence in a family situation. Two of them concern a husband and wife and their liabilities to lenders; two, cohabitants’ property transactions; and two, an elderly mother’s gift to her adult son, where the latter held a power of attorney.

All of these scenarios will be instantly recognisable and may ‘set alarm bells ringing’, but the divergent results of the cases show that the outcome of litigation is far from a foregone conclusion. Bringing or defending a case based on undue influence requires careful analysis.

I have added two recent cases of interest in slightly different contexts. In the seventh an elderly mother’s property was mortgaged and transferred into joint names with her son with a declaration of beneficial joint tenancy. The declaration was rectified without reliance on undue influence. In the eighth the judge pronounced against the testator’s will on the basis of his inference of undue influence, drawn from a careful consideration of all the circumstances.

Husband and Wife

1.   Hewett v First Plus Financial Group plc [2010] EWCA Civ 312
Undue influence, involving the husband’s deliberate concealment of his extra-marital affair, rather than coercion, threats or any presumption.

2.   Davies v AIB [2012] EWHC 2178: 
Husband gave full disclosure of loan and security transactions to wife’s solicitor: no undue influence.

Cohabitants

3.   Smith v Cooper [2010] EWCA Civ 722
A jointly-instructed solicitor’s advice did not rebut the presumption of undue influence.

4.   Liddle v Cree [2011] EWHC 3294 (Ch) 
Parties’ post-separation partition of their property was an unwise transaction for L, who suffered mental ill-health – but undue influence was not established.

Elderly mother and Attorney son

5.   Violet Hackett v (1) Crown Prosecution Service (2) David Hackett [2011] EWHC 1170 (Admin)
Power of attorney inevitably demonstrating relation of influence, in the circumstances. The presumption of undue influence was not rebutted. 

6.   De Wind v Wedge [2008] EWHC 514 (Ch) 
The mother’s desire to assist her son at her daughter’s expense was free and genuine. His attorneyship did not increase the likelihood of undue influence.

Voluntary settlement

7.   Day & Anor v Day [2013] EWCA Civ 280
After her death, the executors obtained the rectification of the transfer to provide that the property was to be held by the transferees on trust for the mother absolutely, but not on the ground of undue influence. Rather, on the basis that the court may rectify a voluntary settlement executed by the settlor in the mistaken belief that it implemented her intention.

Undue influence – will

8.   Schrader v Schrader [2013] EWHC 466 (Ch)
The very elderly testator altered her will to leave her house to one of her two sons. The finding of undue influence was based on inferences.

1. Hewett v First Plus Financial Group plc [2010] EWCA Civ 312

The matrimonial home was owned and mortgaged jointly. The husband persuaded the wife to re-mortgage to re-finance his credit card debts on a secured basis, promising on their children’s lives to pay the increased mortgage instalments. He was having a secret affair, which in due course led to separation and divorce. 

The judge held that no undue influence or misrepresentation was established, as W had exercised her own free will in financial decision-making and signed the charge to rescue the family from a tight financial situation. W appealed, primarily on the ground that H’s failure to disclose his affair amounted to an abuse by him of her trust and confidence. 

As Briggs J, giving the Court of Appeal’s judgment, put it (at para [2]):

The main issue raised by this appeal ... is the extent to which non-disclosure by a husband when seeking to persuade his wife to join with him in a charge of their matrimonial home as security for his separate debts may constitute misconduct on his part sufficient to afford his wife with a defence of undue influence or misrepresentation, when that charge comes to be enforced against her by the chargee. 

Allowing the appeal, the Court held:

(1)   A finding of undue influence does not depend upon a conclusion that the victim made no decision of her own, or that her will and intention was completely overborne. A conscious exercise of will may nonetheless be vitiated by undue influence. 

(2) Following Royal Bank of Scotland v Etridge (No.2) [2001] UKHL 44 (at [33]) a husband would owe to his wife an obligation of candour and fairness, where she reposed trust and confidence in him, which (see Thompson v Foy [2009] EWHC 1076 (Ch) at [100]) could extend beyond the management of her financial affairs. W had reposed sufficient trust and confidence in H to give rise to an obligation of candour and fairness. 

(3)  The purpose of the obligation of candour was that W should be able to make an informed decision (with or without independent advice) properly and fairly apprised of the relevant circumstances. 

(4)   H’s affair plainly called for disclosure. He breached the obligation of candour, exercising undue influence sufficient to vitiate the re-mortgage transaction as between them. The test was objective: would a solicitor advising W independently have thought it relevant to know that, at the time H was asking for her unqualified trust, he was conducting a clandestine affair ?  

(5)   It had never been part of the law of undue influence that, but for the relevant abuse of trust, the impugned transaction would not have been entered into; the right to set aside arose because the wrongful abuse of confidence was part of the process by which the victim’s consent was obtained.

2. Davies v AIB Group (UK) PLC [2012] EWHC 2178 (Ch) (Norris J)

W signed, in June 2001, a facility letter relating to a loan of £1.35m to be advanced by AIB jointly to W and H (“the Personal Loan”). H died in 2005. W later claimed that she accepted the facility of the Personal Loan because of H’s undue influence in that: 
she signed the Personal Loan in ignorance of the fact that a £1.45m Guarantee she also signed in June 2001 related to separate lending to H’s company; 
she did not fully apply her mind to the matter of the Personal Loan or its nature;
she was afraid to ask H questions for fear of abusive violence; 
so that she did not appreciate that her total liabilities to AIB were £2.8m, as opposed to £1.45m.

W advanced no case of misrepresentation, or a specific act of improper pressure or coercion. She accepted that the burden lay upon her to prove undue influence without the benefit of any presumption:- her counsel (Richard Coleman QC) accepted that the entry of a joint loan obligation is the sort of transaction which husbands and wives frequently enter into for good and sufficient reasons.

Dismissing the claim, Norris J.  held that the burden was on W to establish some legal or equitable wrong committed by H which caused her to enter the Personal Loan. The identification of that wrong must take into account the context of the relationship of trust and confidence which commonly subsists between a married couple. 

(1) W signed for the Personal Loan having a basic but real grasp of its nature and context.

(2)    At that time W grasped the gist of the arrangements (including the separate Company borrowing she guaranteed) even if she did not wrestle with the detail or work through the consequences. Inter alia she had had the benefit of her own solicitor’s advice, bringing home to her the existence of two facilities. 

(3)    W’s acceptance of the Personal Loan was not brought about by some wrongdoing by H. The arrangements with AIB were the very sort of transaction that might be accounted for by the ordinary motives of spouses: the family’s assets were on the line throughout. 

(4)    H had sought to ensure that W’s solicitor had the fullest and clearest understanding of the transactions and securities, in order to give whatever advice he thought fit to W. 

(5)    The important point was not whether W’s solicitor did his job competently (although he probably did). It was whether in procuring W’s consent H committed a legal or equitable wrong. But a husband who, by full disclosure of the transaction and relevant documents, put his wife’s solicitor in a position to tender full, informed advice cannot fairly be criticised as lacking candour or suppressing information.

3. Smith v Cooper [2010] EWCA Civ 722

S (the man) and C (the woman) cohabited. C transferred her home from her sole name into their joint names for no consideration, as part of an arrangement where they jointly purchased some adjacent land. They later mortgaged the property to purchase another property in joint names, on which S did a great deal of renovation work. 

The judge ruled that the presumption of undue influence applied to the transfer into joint names: S had acquired a position of ascendancy over C due to her mental condition, his awareness of it and his decision to run her finances. The transactions called for an explanation, because of the proportion of C’s assets tied up in her home, the fact S had not contributed to its acquisition, and the fact that within a short time of him moving in she volunteered a half share to him. 

The judge proceeded from the proposition that the transactions called for an explanation to hold that there was a proper explanation for them, due to the parties’ joint property projects, which involved financial and other input from S, and intention to spend the rest of their lives together. 

However, in the Court of Appeal’s unanimous judgment, given that the presumption applied, the judge erred by failing to address the consequent question: whether C decided to enter into the relevant transactions of her own free will independent of S’s influence. 

The advice given by the solicitor who acted for the parties in the transactions was inadequate to rebut the presumption. It seemed that he acted and advised properly and with reasonable competence in his position as the solicitor instructed by, advising, and representing the two clients jointly. What he did not do, or purport to do, was to give any advice to C from her own separate point of view and for her own separate benefit. Therefore she had not received any independent advice.

Independent advice, in this context, meant advice to and for the benefit of one party alone given by an adviser whose duty it is to consider the position of that party and to advise her so that she can give thought, free from any influence of or dependence on the other party, as to whether she really does want to enter into the transaction, bearing in mind its full implications from her point of view. The adviser, advising the party in question alone, must explain the nature and consequences of the transaction to that party with full knowledge of the relevant circumstances.

4. Liddle v Cree [2011] EWHC 3294 (Ch) (Briggs J)

The Farm was transferred to L (man) and C (woman) as beneficial joint tenants in 1999. They cohabited there from 1999 to 2008 and farmed in partnership. They separated in 2008. During 2009 they dissolved their farming partnership, selling livestock and equipment by auction in September that year and dividing the proceeds equally. 

L was a lifelong bipolar sufferer and controlled his symptoms with lithium. He suffered a heart attack in December 2009 and had a coronary stent fitted. His health worsened significantly in the summer of 2010. 

The parties began to discuss a division of the Farm between them as early as 2008. They reached before December 2009 an agreement in principle for C to have the House and L to have the Barn and agricultural land, and on the boundaries of their respective parts. L intended to continue activities with his sheep dogs and by taking other farmers’ sheep for grazing; he may also have hoped to develop the Barn for living accommodation.

In 2009 there was no relationship between them capable of giving rise (in combination with a transaction calling for an explanation) to a presumption of undue influence. Any trust and confidence between the couple had largely evaporated by the time of their arms’ length negotiations. 

They jointly instructed a firm of solicitors in February 2010, to carry out the conveyancing aspects of the partition. By transfers executed by the parties and dated 31 March 2010 the registered title to the Farm was partitioned into two titles: (1) the House and 5 acres, of which C became sole proprietor; (2) the Barn and 13 acres, of which L became sole proprietor. 

The transfers were not registered until August 2010, by which time L’s mental and physical health had declined so that the transaction was thoroughly unwise and his ability to look after himself had seriously deteriorated. The critical question was whether C’s relationship with L imposed on her an equitable duty to advise him to reconsider the wisdom of the agreed Partition, or at least seek independent advice, before it became irrevocable. The answer was an emphatic ‘no’.

Firstly, the transaction was effectively concluded when the transfers were signed in March 2010. Secondly, although unwise for L even in 2009, the transaction did not call for an explanation, as it was not unfair in terms of value, despite the beneficial joint tenancy of the Farm, because of C’s much larger financial contribution to the purchase. The two severed parts were worth £450,000 (L) and £600,000 (C). Thirdly, it was doubtful that there arose, over a year after their separation, an obligation on L to have regard to C’s best interests.

5. Violet Hackett v (1) Crown Prosecution Service (2) David Hackett [2011] EWHC 1170 (Admin) (Silber J)

V applied for an order setting aside the 2004 transfer of her home to D (her son). She had signed a Power of Attorney in favour of D in June 2003, although the transfer was not executed thereunder. On 27 August 2004 D was arrested in possession of smuggled goods, on which approximately £50,000 in import duty was payable. 

In October 2004 D arranged for V to see a solicitor, to arrange for V to transfer the home to D’s sole name for no consideration. V saw the solicitor on 4 October 2004 in the company of D and a deaf friend of V’s, when the transfer was discussed. On 6 October the solicitor sent a letter to V with a copy of the transfer, which she signed and returned.
In 2007 a confiscation order was made against D for £645,000 odd. The evidence showed that the home was purchased from the savings of V’s late husband. 

The claim in undue influence succeeded. It was accepted that there was a “relationship of presumed influence” between D and V. Silber J said:

“as I would inevitably have found to be the position, there was such a relationship because in June 2003, [V] signed a power of attorney in favour of [D].  ... There are further reasons why there was a relationship of presumed influence ... because first V was deaf, dumb, barely educated and illiterate and second, since the death of her husband, she had become reliant on [D2] to manage her affairs and physically care for her”.

It seems that, consistent with the authorities, Silber J found that the power of attorney was a relevant factor in establishing that a relationship of influence existed, but not that the relation of Attorney – Donor automatically establishes that first step towards the presumption of undue influence. 

The transaction called for an explanation and the presumption of undue influence arose. 
The meeting at the solicitor’s office of 4 October was incapable of emancipating V from any undue influence. For one example among many, the solicitor’s statement in his attendance note of 4 October that the transfer “was probably of her own free will” did not address the issue of whether the transfer was made on the basis of “full, free and informed thought”.

6. De Wind v Wedge [2008] EWHC 514 (Ch) (Patten J)

D and W were sister and brother. Their late mother (M) granted W a general power of attorney to enable him to sell her property (which he did in 1993); M instructed the conveyancing solicitor to pay the net proceeds to W. M died in 2001 intestate. D took out letters of administration and sought an account from W of the proceeds of sale. 

Patten J confirmed that the case did not concern one of the categories of relationship where influence is irrebuttably presumed. D’s burden was to establish the necessary relation of trust and confidence and primary facts surrounding the transaction from which the inference of undue influence could be drawn. The Court’s task was to set this against W’s explanation and to decide whether he had rebutted any such inferences. 

The relationship between M and W was one of trust and confidence -  but not necessarily different from any other between mother and son. The grant of the power of attorney undoubtedly imposed fiduciary duties on W – but it did not add to the likelihood that undue influence having occurred. It was no more than a tool enabling W to manage the sale on M’s behalf. 

However, the gift to W of M’s only capital asset called for an explanation and the presumption of undue influence was engaged, and M had not received sufficient legal advice to rebut it. Nonetheless, in all the circumstances the presumption was rebutted, the judge not being satisfied that undue influence on W’s part had been established as the cause of the gift. 

A key fact was that in 1988 W had advanced £70,000 to D, which was invested in her Spanish business but which was lost with no return. D returned from Spain destitute in 1992. The judge found on the basis of all the evidence that M decided of her own volition to gift the proceeds to W; a decision not made as a result of any influence or persuasion brought to bear on her but, rather, as a response to W’s financial position brought about by his loan to D – that was not undue influence.

7. Day & Anor v Day [2013] EWCA Civ 280

On 13 May 1985 Mrs Eileen Day executed a general power of attorney in favour of Alan Froud, a local solicitor. The property was conveyed from Mrs Day’s sole name into the joint names of her and her son Terence, to be held by them as beneficial joint tenants, on 6 June 1985 “in consideration of natural love and affection”, and mortgaged on that day. Mr Froud executed the conveyance on Mrs Day’s behalf, as attorney. The mortgage was subsequently redeemed. 

By her last will, executed in November 2008, Mrs Day appointed the parties to be her executors and directed that the property be sold and the proceeds divided equally between her six children. She died a few weeks later and Terence became the sole legal and beneficial owner of the property by survivorship. Terence admitted the reason for the transfer was to assist him in raising funds, but alleged that was no agreement he should not acquire a beneficial interest. He denied the claim for rectification.

The recorder found (at least partly, by inference) that Mrs Day never intended to give, and never thought she had given, a beneficial interest to Terence. It was common ground on appeal that he correctly treated the transfer as being in the nature of a voluntary settlement and that, therefore, for the purposes of rectification, the relevant intention was Mrs Day’s and that Terence’s intention was irrelevant. However, he ruled that since there was no evidence that the attorney was acting against his instructions, there was no ground for rectification.

Morritt C and Elias LJ ruled he rightly pointed to Re Butlin’s Settlement Trusts [1976] Ch 251 as setting out the relevant legal principles, including that a settlor may seek rectification by proving that the settlement does not express his true intention. Rectification hinges on whether he executed it in the mistaken belief that it implemented his intention.

The attorney solicitor’s execution of the transfer on Mrs Day’s behalf did not bind her and the recorder was in error. His actual authority under the general power of attorney is prescribed by his client’s instructions. Apparent authority may make the transaction binding on the principal, but equity intervenes not on the ground of lack of authority but of a failure of intention. 

Lewison LJ reached the same result on the basis that the transfer was a voluntary disposition. Mrs Day was mistaken as to the legal effect of the transfer; she did not intend to give away a beneficial interest, but that was the effect of the conveyance. In the case of a voluntary disposition it is the subjective intention of the donor or settlor that counts. 

He ruled the mistake was of sufficient gravity to satisfy the test in Ogilvie v Littleboy (1897) 13 TLR 399 i.e. that it was unjust for Terence to retain the benefit of the gift. The court was entitled to take into account that he had concealed the effect of the conveyance from his mother, so that she did not do anything to correct the mistake in her lifetime.  

The Supreme Court has subsequently (May 2013) considered Ogilvie v Littleboy and the other authorities on setting aside a voluntary disposition in depth (Pitt v Holt  [2013 UKSC 26, [2013] 2 WLR 1200). In brief, the equitable jurisdiction to set aside a voluntary disposition on the ground of mistake is exercisable when there is a causative mistake so grave that it would be unconscionable to refuse relief.

As the SC ruled unanimously (at [128]), when treating the equitable doctrine of mistake, the court cannot decide the issue of what is unconscionable by an elaborate set of rules. It must consider in the round the existence of a distinct mistake (as compared with total ignorance or disappointed expectations), its degree of centrality to the transaction in question and the seriousness of its consequences, and go on to make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected. The court may and must form a judgment about the justice of the case.

The principles confirmed in Pitt v Holt are capable of applying to a case where the claimant himself had executed the relevant instrument and, indeed, to a gift (Snell’s Equity 15-006, 32nd Ed, 2nd cum supp:- “Gifts, gratuitous settlements, and other gratutious dispositions … can be rescinded where there was a causative mistake which was so grave that it would be unconscionable to refuse relief.  This test will normally only be satisfied where there was a mistake either as to the legal character or nature of the transaction or as to some matter of fact or law which was basic to the transaction.”)

‘Mistake’ has been recognised as a ground for rectification in a Goodman v Gallant situation, although there is no decided authority in the cohabitants’ cases where one co-owner has had an express declaration set aside by virtue of unilateral mistake. Watch this space.

8. Schrader v Schrader [2013] EWHC 466 (Civ)

On 01 October 1990 the deceased (Jessica Schrader) made a will leaving the residue of her estate, which included her house, to her two sons equally. The will was prepared by her usual solicitors. However, on 12 April 2006, aged 96, she made a further will leaving her house to one son, Nick. The will was prepared by Premier Wills, a will-writing business. The other son, Bill, sought to overturn the later will by reason of lack of capacity, want of knowledge and approval, and undue influence. 

Mann J found that the deceased had testamentary capacity and knew and approved of the 2006 will. However, he found that undue influence had been established. The circumstances required the inference that 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 was not possible or necessary to determine any more than that the precise form of the pressure or its occasion(s). The telling circumstances were: 

(i)     the deceased’s age-related vulnerability; 
(ii)    her dependency on Nick;
(iii)   the non-engagement of the deceased’s regular solicitors;
(iv)   the inaccurate reason for giving the house to Nick given to the will-writer;
(v)    the lack of any other reason to change the will in that respect; 
(vi)   Nick’s persona as a forceful man with a forceful physical presence;
(vii)   Nick’s strong feeling he had not been treated equally with his brother; 
(viii)  Nick’s dishonest evidence minimising his prior knowledge of the draft will;
(ix)    Nick’s not disclosing the 2006 will for 6 months after the death; 
(x)     no contra-indication was provided by the will-writer’s evidence that the deceased had confirmed to her that she was not under any undue pressure or influence – a victim of subtle undue influence will not be likely to reply “Yes”.

The majority of this article was first published on www.familylawweek.co.uk