Undue influence meaning

This Checklist This Checklist outlines the actions required when shaping and composing a marital or civil partnership agreement. It also covers formalities, including execution as a deed, duties affecting third parties, and the court’s jurisdiction. It further addresses financial disclosure, property that is non-matrimonial or outside the civil partnership, fairness, undue influence, and the need for independent legal advice for marital agreements, and can serve as an aide-memoire when drafting a marital or civil partnership agreement. It is suitable for use with pre-nuptial, post-nuptial, and separation agreements...

Testamentary capacity Oliver v Oliver [2024] EWHC 2289 (Ch) – News Analysis: Will overturned for want of testamentary capacity and undue influence (Oliver v Oliver). This judgment is an uncommon instance of a successful attack on a professionally drafted Will for both incapacity and coercion, even where the court had a recording of the testator’s instructions and the GP had issued a supporting certificate. Despite those formalities, the court concluded the Will should be set aside on both grounds. Alexandra Rogers, managing associate at Foot Anstey LLP. Leonard v Leonard (by her litigation friend Sharon Thompsett) [2024] EWHC 321 (Ch) – News Analysis: High Court offers guidance on the test for testamentary capacity (Leonard v Leonard). The High Court examines and clarifies Banks v Goodfellow, and underscores the continuing importance of expert evidence in capacity disputes. It underscores how clinical and legal evaluations interact closely, effectively. George Vare, barrister at Serle Court Chambers. Wilkinson v Hicken [2023] EWHC 1983 (Ch) – News Analysis: Personality disorders...

Undue influence Where a person gives security to support a third-party borrower, a presumption of undue influence may arise in particular situations and, in certain circumstances, be assumed—for details on when this presumption is engaged, see Practice Note: Taking a guarantee or third party security from an individual—undue influence. After the House of Lords ruling in Royal Bank of Scotland v Etridge (No 2), the Law Society issued guidance for solicitors advising security providers to protect themselves from negligence claims. The judgment itself also explained the means by which a lender may protect itself from third-party security being set aside in circumstances where there is potentially undue influence. Checklist for a lender taking third-party security from an individual To rebut the presumption of undue influence (see above), a lender must be able to demonstrate that the security provider understood the nature of the transaction and chose to grant the security on an informed basis. In order to do this, whenever the relationship between the debtor and...

Oliver v Oliver [2024] EWHC 2289 (Ch) What are the practical implications of this case? This judgment stands as an uncommon instance of a Will being set aside for both want of testamentary capacity and undue influence despite professional preparation, the court having the testator’s recorded instructions, and a certificate obtained from the testator’s GP. It merits close reading for its survey of authority and its demonstration of the application of legal principles in real cases, including where a defendant declines to engage with the proceedings. The court concluded that William lacked testamentary capacity after a detailed evaluation of his medical notes (including a post-mortem), expert opinion from a Consultant in Old Age Psychiatry, and witness evidence. Although a determination on undue influence was not required, the reasoning still provides a helpful illustration of a successful claim. Jane adduced substantial material evidencing Rodney’s domination of William, which encompassed restricting his contact with other relatives and influencing his medical treatment. Rodney induced William to cease his prescribed treatment and instead...

In this issue: Forfeiture Contractual issues Repairing obligations and dilapidations Service charges Key developments and horizon scanning Property disputes in Scotland LexTalk®Property Disputes: a Lexis®Nexis community Additional Property disputes updates Daily and weekly news alerts New and updated content Trackers Latest Q&As Forfeiture Valuing a claim for wrongful forfeiture (Tanfield (as executor of the Estate of Paul Watkins) v Meadowbrook Montessori Ltd) In Tanfield (as executor of the Estate of Paul Watkins) v Meadowbrook Montessori Ltd [2024] EWHC 1759 (Ch), [2024] All ER (D) 77 (Jul), the court threw out a landlord’s winding-up petition for £167,593.41 presented against a company established to operate a school. It held there was a firmly arguable position that the majority of the petitioned sum was not rent arrears, but consideration payable for shares in the company. The judge further acknowledged a cross-claim with a genuine prospect of success, quantified at no less than £546,000 in...

In this issue: Wills Probate Trusts UK taxes for Private Client HMRC Manuals updates Tax avoidance, evasion and non-compliance Contentious trusts and estates Scotland, Wales and Northern Ireland International Question of the week Daily and weekly news alerts LexTalk®Private Client: a Lexis+® community New and updated content Dates for your diary Trackers Latest Q&As Useful information Wills No line of sight—due execution and presence In the Estate of Kathleen Coady, District Judge Chloë Phillips delivered judgment in Coady v Coady PT-2023-BHM-000025 (Business & Property Courts in Birmingham (Probate)), addressing as a preliminary question whether a coronavirus (COVID-19) era ‘garden signing’ met section 9 of the Wills Act 1837. The court concluded it did not, rendering the 25 April 2020 Will invalid. Written by Charlotte John of Gatehouse Chambers. See News Analysis: No line of sight—due execution and presence In the Estate of Kathleen Coady. Probate...

Facts Mr Smith, aged 75, was recently bereaved after a 40-year marriage, having been diagnosed with dementia shortly before his wife passed away. He had already put in place a Lasting Power of Attorney naming his children and made a Will in their favour. He began spending time with his carer, Ms James, aged 34, who has progressively cut him off from relatives and friends. He often says he is busy and, when his family do see him, he appears not to be looking after himself or his home. His relatives are worried about the influence Ms James exerts, though they accept he has been lonely. Their concern heightened when, last week, Ms James declared they were going to marry, yet Mr Smith seems blissfully unaware of any such plan. What action can Mr Smith’s family take to keep him safe? Mental capacity They should first assess whether Mr Smith retains decision- and time-specific mental capacity, explain the situation to him, and seek his agreement to...

Legal validity of Wills In Scots law, a testamentary writing made after 1995 is treated as valid and self‑proving where the following requirements are met: the testator has signed every page the signing took place in the presence of a witness the witness signed the final page The absence of one or more of these features is not fatal, provided the testator did sign the document. If so, anyone with an interest (for example, an executor or beneficiary) may ask the court to ‘set up’ the writing. This can be done by summary application in the Sheriff Court, or incidentally within other proceedings, and in practice is often pursued when applying for confirmation. The burden of proof rests on the applicant, and evidence will usually be by affidavit unless the court directs otherwise. A decree has the effect of creating a presumption that the document was subscribed by the person granting it. Grant of confirmation Confirmation is the...

Scots contract law Although they have separate origins, Scots contract law has, in many respects, drawn closer to the English position. English-law notions such as undue influence and anticipatory breach have been taken into Scots contract law, and some leading authorities coincide across both systems. Nonetheless, there remain important differences that it is sensible to keep in view. The aim of this Practice Note is to point out some of the key differences between Scots and English contract law in these areas...

[ IN THE COUNTY COURT AT [ INSERT ] OR IN THE HIGH COURT OF JUSTICE ] [ [ SPECIFY DIVISION ] ] [ [ INSERT LOCATION ] DISTRICT REGISTRY ] Claim No: [ insert claim number ] Between [ Insert the Claimant’s name ] Claimant and [ Insert the Defendant’s name ] Defendant PARTICULARS OF CLAIM At all relevant times, the Defendant was both the owner and the driver of a [ insert make and model of vehicle ], registration number [ insert vehicle registration number ]. At [ insert time ] on [ insert date ], the Claimant was properly using the pedestrian crossing on [ insert street name, town, county ]. Whilst the Claimant was on the crossing, the Defendant approached at undue speed and drove erratically, failed to stop, and struck the Claimant, thereby causing injury to [ her OR him ]...

Key legal issues for guarantees Guarantees constitute contracts and must accordingly meet the four essential elements of a contract, namely: offer acceptance consideration the intention to create legal relations As a rule in law, consideration given in the past is ordinarily insufficient. A firm ought not to take a guarantee once it has already agreed to supply services to a client in question. The guarantee must also comply fully with s.4 of the Statute of Frauds 1677. It must thus be recorded in writing and properly signed by the guarantor as required. The Firm should also be alert to potential claims of misrepresentation, duress, and undue influence. It is sound practice to see that the guarantor receives independent legal advice on the implications of giving the guarantee. Is the guarantee a regulated credit agreement? Where undertaken by way of business in the United Kingdom, entering into a regulated credit agreement may potentially amount to a regulated activity under...