When a relationship with a vulnerable person, or someone who comes under the influence of another, is exploited for personal gain, the courts will sometimes agree that the gains that accrue to the exploiter can be set aside.

The courts will normally act when there is evidence of considerable influence being exerted over someone, who is typically lacking strength of mind, with the result that there are transfers of assets made to the person exercising the influence which benefit that person and which cannot be accounted for by ordinary motives. The person deemed to exercise undue influence must have the trust and confidence of the transferor and normally there is an absence of legal advice having been taken over the transfer.

In a recent case, a ‘bullying and manipulative’ man took over the management of his frail and elderly aunt’s affairs and arranged the transfers of titles of land that she owned into his own name. The court supported the application of the man’s brother that his aunt had not made the transfers after full, free and informed consideration and the court therefore ordered them made void.

For undue influence to occur, it is not necessary for the person making the gift to be mentally incapable. The key factors are the absence of full, free and informed consideration (normally shown by the absence of professional advice), the absence of an explanation for the gifts through ordinary motivation and for the person exerting the influence to be in a position of trust. It is sensible in all cases where significant gifts are considered to take professional advice. Then when the gift is made, the evidence of the reasons for it is in existence and, importantly, the Inheritance Tax implications can also be discussed.

Contact us for advice on making gifts or if you wish to take issue regarding a gift that you believe has been made as a result of undue influence being exerted, or you wish to make a gift which can subsequently be defended from a claim of undue influence.