Contract 11 - Undue influence

Question 1

What is undue influence?

Answer 1

consent not expression of their free will
🧖‍♂️

Question 2

What are the 2 types of undue influence?

Answer 2

1. Overt Acts of Improper Pressure or Coercion 🤹😖

OR

2. Relationship where 1 has influence over the other which was taken advantage of 👨‍👩‍👧

Question 3

What is required for acts of improper Pressure or Coercion 🤹😖?

Answer 3

• where behaviour is deceitful/fraudulent, only a factor in inducing C
  😈🤏
• if not deceitful, but for test applies
  😇🐘

Question 4

When will the court infer Undue Influence (albeit it can still be rebutted)?

Answer 4

• Relationship of trust and confidence (if not irrebuttable presumed) 🫂

AND

• Transaction is out of the ordinary requiring explanation 🤯

Burden 👨‍⚖️ then shifts to D to show no UI

Question 5

For the second test, there needs to be a relationship of influence (ascendency) where 1 takes advantage of the other. What relationships is there an irrebuttable presumption of influence?

Answer 5

• Parent and child 👨‍👩‍👧
• Guardian and ward👨‍👩‍👧
• Trustee and beneficiary👻👲
• Solicitor and client 👨‍💼👩‍🍳
• Doctor and patient👨‍⚕️🤒

Question 6

For the second test, there needs to be a relationship of influence (ascendency) where 1 takes advantage of the other. What relationships are there where there is no presumption of influence?

Answer 6

• Parent and adult child 👴👨‍🦲
• Husband and wife🤵👰

Influence will need to be positively shown

Question 7

If there is a relationship of influence AND a transaction that requires explanation, what is the outcome?

Answer 7

Undue Influence is assumed so it is now for the D to show that there was no UI

Question 8

What is required for the matrimonial home?

Answer 8

• wife must see solls
• bank provide solls with info
• if aware the wife has been misled, must tell solls
• solls meet with wife
• explain risk of losing home
• the seriousness of that risk
• the fact the wife has a choice

If fails, wife has recourse to solls not lender.

Question 9

What is the remedy for undue influence?

Answer 9

Rescission 🔂 (but can be lost if contract affirmed, and equitable principles apply)
🎁🤭

Question 10

When do you not need to give notice of hearsay?

Answer 10

• witness statement served on other party by a witness that will appear at court
• witness statement served on other party by a witness that will NOT appear at court as long as told W won’t be appearing in court and the reasons why not