Most of this case law is, following Etridge, of historical interest only, but one or two of the decisions are worthy of note. Elizabeth told her that Gloria ran the doctor’s office and made financial decisions. [71] The plaintiffs say that to trigger a presumption of undue influence, the court must first consider whether the potential for domination is inherent in the nature of the relationship itself. 11.2.2  THE MODERN LAW OF UNDUE INFLUENCE. gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. All Rights Reserved by KnowledgeBase. The second is where the relations between the donor and donee have at the time of or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. Millett LJ’s approach was not specifically followed by the other members of the Court of Appeal, though Swinton Thomas LJ stated in general terms that he agreed with Millett LJ’s reasons for his decision.53 This aspect of Burch was not considered by the House of Lords in Etridge, though the outcome of the case was clearly approved by Lord Nicholls.54 Millett LJ’s analysis, however, would not seem to fit with the Etridge approach. [89]         All of the witnesses describe Elizabeth as a quiet, home-loving, family-oriented person who did not like conflict. Actual undue influence. Thus, once there is a relationship falling within one of the categories of automatically presumed influence, and a transaction which is not of a kind forming one of the normal incidents of such a relationship, there will be an inference of undue influence. The easiest way to do this is likely to be to show that the claimant received independent legal advice before entering into the transaction, though the Privy Council in Attorney General v R did not think that this was necessarily conclusive.39 The adequacy of the advice to protect the influenced party may need to be considered.40 It is certainly not sufficient for the alleged influencer simply to show that there had been no ‘wrongdoing’ on his or her part.41, 11.5  PRESUMED INFLUENCE: OTHER RELATIONSHIPS. The phrase ‘manifest disadvantage’ should not be used,65 and it is certainly not the case that the claimant has to prove such disadvantage to establish that there was undue influence in such a case. Etridge has changed the focus on this issue, but to understand where the law has got to, it will be helpful to look at a little of the history. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. parent and child; guardian and ward; trustee and cestui que trust; solicitor and client; physician and patient ; cases of religious influence. She had been visited at home by the bank manager and had thereupon signed the charge. Whether the solicitor discussed with the grantor other options whereby she could achieve her objective with less risk to her. However, the aim is to ensure that the influence exercised is not abused. [73]         The plaintiffs submit that these factors show a relationship between Gloria and Elizabeth that gives rise to a presumption of undue influence. The influence was presumed from the relationship itself. The precise scope of the concept of undue influence may be due for reconsideration. The fact that the claimant placed trust and confidence in the defendant in relation to the management of the claimant’s financial affairs will have to be proved by evidence. Mr Lee was a well-educated man with substantial experience in business affairs, while Ms Chai had a 'less forceful personality' and less business experience. Duress, as discussed in the previous chapter, is essentially a common law concept. Second, for the presumption to arise, the transaction had to be to the ‘manifest disadvantage’ of Mrs Morgan. The Court of Appeal held that this was irrelevant. This interpretation was firmly rejected by the House of Lords in CIBC Mortgages plc v Pitt.58 At the same time, Lord Browne-Wilkinson expressed some concern over the need for the requirement even in cases of presumed undue influence.59 The Court of Appeal in Etridge reaffirmed that it was necessary,60 but in Barclays Bank v Coleman61 suggested that the disadvantage which needed to be shown did not have to be ‘large or even medium-sized’, provided that it was ‘clear and obvious and more than de minimis’.62, Prior to the House of Lords’ decision in Etridge, therefore, the position was that in cases of presumed undue influence, there was a requirement that the transaction should be to the manifest disadvantage of the claimant before it would be set aside. He has an eye for talent and a heart for giving back. [2], As the law of undue influence was applied and developed by the Court of Chancery, it developed into two distinct classes: ‘actual’ undue influence and ‘presumed’ undue influence. The House of Lords took the view, however, in Royal Bank of Scotland v Etridge (No 2)17 that, while there is a distinction between ‘actual’ and ‘presumed’ influence, it should not operate quite as suggested by the categorisation adopted in O’Brien and that, in particular, the concept of Class 2B influence is open to misinterpretation.18.

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