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The equitable doctrine by which a will will be set aside if procured by undue influence.
In probate, undue influence must be positively proved. There is no doctrine of presumed undue influence in relation to wills. Undue influence is coercion; pressure so as to overpower the volition without convincing the judgment; see Hall v Hall (1868) LR 1 P & D 481.
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Unfair commercial practices—checklist This Checklist considers the key practices, actions and omissions amounting to unfair, misleading or aggressive commercial practices under the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (CPUTR 2008), which may lead to criminal prosecution, regulatory action and adverse publicity. Consumers also have private rights of redress, including the right to unwind the contract, the right to a discount and the right to seek damages. It considers the changes that the Digital Markets, Competition and Consumers Act 2024 (DMCCA 2024) will bring about. All commercial practices need to be considered and checked to ensure that they do not breach these requirements. These include marketing techniques; traders should consider in particular new media techniques, which can sometimes be unclear to consumers as being commercial activity. For more information on the CPUTR 2008, see Practice Notes: • The Consumer Protection from Unfair Trading Regulations 2008, and • Private right of redress for consumers See also: Advertising law and regulation—overview and Sales and marketing—overview. The DMCCA 2024 In July 2021, BEIS,...
Family provision claims—table of cases Spouse or civil partner of the deceased Topic Case name Summary Author Spouse of the deceased Ramji v Harvey (in his capacity as executor of the estate of Sugrim Orlando Ramji deceased) and others [2023] EWHC 1664 (Ch) News Analysis: Lifetime transaction set aside on the basis of undue influence (Ramji v Harvey).In this preliminary issue trial in a claim under I(PFD)A 1975, the court set aside a transfer finding that the relationship between the deceased and the surviving spouse was one of trust and confidence resulting in a presumption of undue influence. Holly Challenger, Parklane Plowden Chambers Spouse of the deceased Re estate of Singh (deceased) [2023] EWHC 304 (Fam) News Analysis: Spousal claim under I(PFD)A 1975 dealt with on an abbreviated basis (Re estate of Singh (deceased))The judge dealt with this claim on an abbreviated basis, as the claim was either uncontested or alternatively, if D3 were to contest the claim, summary judgment could be given. Aimee Jones, Sternberg Reed LLP Spouse...
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If a Will is rational, in regular form and appears to be duly executed, the following presumptions apply:•due execution•capacity•knowledge and approvalPresumption as to due executionThe court will presume due execution if presented with a Will that, on the face of it, appears to be duly executed by applying the principle omnia praesumuntur rite esse acta (all things are presumed to be done in due form). This may be rebutted but strong evidence is required:'The strongest evidence would be required to show that a will had not been executed in accordance with the Act when it appeared from its face to have been properly executed, and there was no question but that the will represented the testator's intention. The court should be slow on the basis of extraneous evidence to hold that such a will had not been properly executed, since evidence of events that had happened years previously was likely to be unreliable. To do so would be to deprive the testator of giving effect to his wishes, which he...
Governance, systems and controls requirements for insurers Introduction The requirements on UK insurers concerning the topics of governance, risk management, systems and controls are all interlinked and should be approached in a holistic manner. These requirements primarily take the form of a number of detailed regulatory rules and guidance, and insurers must periodically review their governance, risk management, systems and controls to ensure effective compliance with them. Insurers will also be aware that the UK regulators determine whether certain incidents represent regulatory breaches by reference to overarching ‘threshold conditions’ and broad regulatory principles (or ‘fundamental rules’), which are set out in this note. Accordingly, the UK regulators could consider an insurer to be in breach of applicable regulation by reference to a threshold condition or a regulatory principle even if there is no rule that explicitly covers the issue in question. For an insurer, there is also conceptually an overlap between what may be regarded as governance or systems requirements and what may be regarded as capital or...
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Legal opinion letter: English borrower entering into a secured bilateral facility agreement [ To be printed on the headed paper of the lender’s lawyers ] To: [insert name and address of Lender] [insert date] Dear [insert name of Lender] [ Matter name/reference ] We have acted as legal adviser on English law to [insert name of lender] (the Lender) in connection with the provision of financing to [insert name of borrower, company number and registered office] (the Borrower) for a secured [and guaranteed ] [term loan and revolving credit facility] [describe facilities] of £ [insert amount] (the Transaction) and the negotiation, preparation, execution and completion of the documentation described in Schedule 1 (Documents examined) Paragraph 1 (Opinion Documents) (the Opinion Documents). We are providing this opinion letter to you, the Lender, pursuant to [Schedule 2] (Conditions Precedent) of the facility agreement between the Lender, the Borrower, [and Obligors] dated [insert date] (the Facility Agreement). [In this opinion letter, the Borrower, [insert name of...
Client care policy 2011 [Archived] 1 Introduction 1.1 Client care is central to the regulatory regime under which we operate. [Insert name of firm] is committed to providing a good standard of service to all clients and all staff share the responsibility of ensuring we achieve this. 2 Treating our clients fairly 2.1 We must treat our clients fairly and with respect. 2.2 We will not: 2.2.1 abuse our position by taking unfair advantage of clients or others; or 2.2.2 unfairly discriminate by allowing our personal views to affect our professional relationships and the way in which we provide services to clients. 2.3 In all cases, we will: 2.3.1 explain to the client, record on the file, and confirm in writing any limitations or conditions on what we can do for them, eg because of the way their matter is funded; 2.3.2 have proper regard to their mental capacity or other vulnerability (eg incapacity, duress or disability—see further section 4 below) when taking instructions and during the course...
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Can you make an application to set aside a judgment if the parties settle a claim prior to the remedy hearing? Where the parties reach an agreement to settle a claim either judgment will be entered by consent or the parties will enter into a Tomlin Order by which the claim is stayed save for the purposes of enforcement of a schedule entered into between the parties. Simple cases in which one party agrees to pay money to the other will often be dealt with by a judgment. Tomlin Orders have the benefit of allowing the parties to agree to provisions which the court does not have the power to order. The court has a wide discretion to vary or revoke orders under CPR 3.1(7), though whilst the rule is broad and unfettered, considerations of finality meant that the discretion ought normally only to be exercised where there has been a material change of circumstances since the order was made, or where the facts on which the original decision were...
Do the Etridge principles only apply to guarantees in respect of loans with security or do they also apply when a lender takes a guarantee but no security? The Etridge principles need to be considered by a lender whenever a lender is taking a guarantee or third party security from an individual. Undue influence is improper pressure imposed on the guarantor/third party security provider by somebody else (usually, the principal debtor). It means that the guarantor/third party security provider did not provide the guarantee/third party security on the basis of a free and informed decision. The leading case on undue influence in finance transactions is Royal Bank of Scotland v Etridge (No 2). The case concerned a husband and wife where the wife charged her interest in the family home to secure the liability of her husband or his business to the lender. The wife claimed that she had charged her interest in the home as a result of the undue influence of her husband....
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This week’s edition of Private Client highlights includes: (1) HMRC updates form IHT100f; (2) Knight v Barnsley, which held that the Court of Protection did have jurisdiction to determine a dispute over a claimant’s deputy’s release from reverse indemnity undertakings; (3) Manolete Partners Plc v White, in which the Court of Appeal held that occupation pension benefits are generally inalienable; (4) Hannah v Revenue and Customs Commissioners, where the First Tier Tribunal (Tax) permitted the amendment of grounds of appeal to include ground that the transfer of assets abroad regime is incompatible with EU law; (5) Hirachand v Hirachand, a decision of the Supreme Court which makes it clear that success fees cannot be included in awards for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975; and (6) the Chancellor has confirmed that the Spring Forecast will take place on 26 March 2025.
EU Law analysis: the Court of Justice clarifies that the concept of ‘average consumer’ must be defined not only by reference to a consumer who is reasonably well-informed and reasonably observant and circumspect but must also take into account the fact that an individual’s decision-making capacity is impaired by constraints (eg cognitive biases). It also states that a commercial practice involving the simultaneous offer of a personal loan, and an unrelated insurance product is neither an aggressive nor an unfair commercial practice per se, under Articles 6 and 8 of Directive 2005/29/EC, the EU Unfair Commercial Practices Directive (EU UCPD). Finally, the court rules that the EU UCPD does not preclude a national measure allowing an authority to grant the consumer a reasonable cooling-off period between the signing of contracts after an aggressive or unfair commercial practice has been identified, unless there are other means less prejudicial to the freedom to conduct a business which are equally effective to put an end to such practice. Written by Roman Brtka, partner...
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