Undue influence simply means that one person coerces or puts another under unreasonable pressure to in effect pass property over to that person. In other words the person so influenced does not exercise their free choice in the matter.
There are two types of undue influence:
- Actual undue influence of improper pressure/coercion. Here the accuser has the burden of proof.
- Presumed undue influence. If established the burden of proof falls on the recipient of the gift or influencer. So here a situation arises where it is evident where there is a dominant influencer party e.g. parent/guardians, fiancé, religious adviser, medical advisers and solicitors. This is however not an exhaustive list
In regard to lifetime gifts, if such a power relationship can be shown then it is for he or she who benefits from the gift to rebut the presumption of undue influence.
Compare this with wills where the law holds that there is no scope for presumed undue influence.
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With wills he or she who alleges must prove!
In our experience, issues over lifetime gifts tend to crop up when a parent has during his or her life made a gift, say of the family home, to one of their children, and then seemingly failed to consider the impact of that gift on the size of their estate on death, in regard to what the other children get.
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