Undue influence

Question 1

What is the equitable doctrine regarding delay?

Answer 1

Delay is bad

This principle underscores the importance of timely action in legal matters.

Question 2

What are the two types of undue influence?

Answer 2

• Overt acts of improper coercion
• Taking advantage of influence or ascendancy in a relationship

Question 3

What is required for the innocent party to establish undue influence?

Answer 3

Establish that undue influence is a factor influencing the contract

This is necessary for the court to consider the claim.

Question 4

In which types of relationships is there an irrebuttable presumption of undue influence? (5)

Answer 4

• Parent/child
• Guardian/ward
• Trustee/beneficiary
• Solicitor/client
• Doctor/patient

Question 5

What constitutes a suspicious type of transaction?

Answer 5

• Transaction that does not fit usual expectations in the relationship
• Suspiciously high value

Question 6

In most cases, what must the party alleging wrongdoing prove regarding the matrimonial home?

Answer 6

Prove unfair advantage - the matrimonial home question is not one which require explanation, so this alternative limb must be relied on to prove undue influence.

Question 7

What happens if the alleged wrongdoer can produce evidence against undue influence?

Answer 7

Burden shifts to the wrongdoer - they must convince the court that undue influence did not occur.

Question 8

How is presumed undue influence established in the relationship between spouses?

Answer 8

Spouse must prove trust and confidence

This is relatively easy to establish compared to other relationships.

Question 9

What must a creditor do to ensure a wife’s agreement to stand surety is properly obtained?

Answer 9

Take reasonable care to satisfy himself that this is the case

Question 10

Is there an obligation for the creditor to see the wife personally?

Answer 10

No obligation, unless aware of improper advice

It is reasonable to rely on confirmation from a solicitor.

Question 11

What should a solicitor provide to the wife regarding the transaction?

Answer 11

• Explanation of documents
• Practical consequences
• Seriousness of the risk
• Fact that the wife has a choice

Question 12

What could happen to a solicitor if they fail to properly inform the wife?

Answer 12

Could face negligence claims

This emphasizes the importance of thorough communication.

Question 13

what should the creditor do

Answer 13

creditor must provide solicitor with sufficient information about the transaction so they can explain it to the wife.