As is so often the case, this dispute arose between two siblings after the death of their parent, and concerned the validity of a significant lifetime transfer by the parent to one of them, thus substantively defeating the parent’s pre-existing testamentary intention that their estate be divided equally between the two children.
The mother had moved out of her own home to live with C, and later moved to live with D. Soon after, it was decided she would move back to her own home with D. She expressed the wish to transfer her home into joint names with D and D instructed a conveyancing solicitor on her behalf in this regard, specifying a joint tenancy. Ultimately a transfer to the mother and D as beneficial joint tenants took place, not long after the mother had made a Will dividing her whole estate between C and D equally.
The judge adopted the summary of the law of undue influence by Lewison J in Thompson v Foy  EWHC 1076 (Ch) at -. Although a presumption of undue influence arose in respect of the transfer, and D had failed to discharge the duty on him to be open and candid with his mother about the consequences of it, the presumption was rebutted and the transaction stood: the conveyancing solicitor was independent and competent, and in a private meeting with the mother had accurately explained to her the differences between a beneficial joint tenancy and a beneficial tenancy in common, which advice she had understood and still decided to proceed.
The decision demonstrates that whether a transaction will be set aside for undue influence turns not on the conduct of the donee leading up to the transaction – which may be expressly disapproved of by the Court – but the donor’s state of knowledge and so freedom of thought at the time of the transaction: if the donor proceeds with the transaction after receiving competent, independent legal advice, it is likely to be very difficult to satisfy the Court that the transaction is the product of undue influence, regardless of the other surrounding circumstances.
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