(iv) Rebutting the Presumption of Undue Influence

Once the claimant has established that he or she was under the influence of the defendant and that the transaction requires explanation, undue influence will be presumed so that the ground of restitution will be established, unless the defendant can rebut the presumption. To do this the defendant must show that the transaction ‘was the spontaneous act of the [claimant] acting under circumstances which enabled him to exercise an independent will and which justified the Court in holding that [the transaction] was the result of a free exercise of the [claimant’s] will’.^[1] This raises an issue of causation, since the defendant must show that the claimant entered into the transaction voluntarily and was not induced to do so by the defendant’s influence.

Whether the defendant can rebut the presumption of undue influence depends upon all the facts of the case. By far the most common method of rebuttal is by showing that the claimant had received independent advice about the transaction, since if the claimant entered into the transaction even after having received such advice this suggests that the claimant had freely exercised his or her will. The adviser need not be a lawyer,^{1 0} but the adviser must be independent of any influence from the defendant.^{[2] [3]} The advice must be fully informed and competent.^[4] This means that the adviser should be qualified to give the advice and must be fully aware of the facts of the case. The function of the adviser is not simply to ensure that the claimant understands the transaction, since the adviser must also be satisfied that the transaction is one which the claimant could sensibly enter into if not improperly influenced. If the adviser is not satisfied of this, he or she should advise the claimant not to enter into the transaction.^[5] The presumption will not be rebutted if the claimant had the opportunity to obtain legal advice but failed to avail him or herself of that opportunity. The defendant must show that the claimant did obtain the advice and acted on it, for as Millett LJ has recognized, if it was simply sufficient that the claimant obtained the advice, the influence which produced the claimant’s desire to enter into the transaction in the first place would cause the claimant to disregard any advice that he or she should not enter into the transaction.^[6] It follows that, if the presumption of undue influence is to be rebutted, it must be shown that the claimant was free from such influence,^[7] and simply obtaining independent advice does not show this; the advice must actually be that the transaction is a sensible one for the claimant to enter into. Further, the circumstances in which the advice was given must also be taken into account to determine whether it was adequate to bring home to the claimant the nature and effect of the transaction.^[8] Ultimately it is a question of fact whether the advice had the effect of emancipating the claimant from the effect of the influence.^{[9] [10]}

But showing that the claimant has received and acted on independent advice is not the only method of rebutting the presumption of undue influence.^{1 8} The defendant can rely on any available evidence to show that the claimant had acted voluntarily and as a free agent and so rebut the presumption. For example, in Re Brocklehurst^[11] a majority of the Court of Appeal held that the defendant could rebut the presumption of undue influence by showing that the deceased’s gift to him of valuable shooting rights arose from the free and independent exercise of the deceased’s will, motivated by the close friendship between the parties. The fact that the defendant’s own conduct is unimpeachable is not sufficient to rebut the presumption of undue influence.^[12]

• [1] Allcard v Skinner (1887) 36 Ch D 145, 171 (Cotton LJ). In Zamet v Hyman [1961] 1 WLR 1442, 1446Lord Evershed MR said the presumption will only be rebutted if the defendant establishes that the claimantentered into the transaction ‘after full, free and informed thought about it’.
• [2] Inche Noriah v Shaik Allie Bin Omar [1929] AC 127, 135 (Lord Hailsham LC). 111 Ibid.
• [3] 112 Wright v Carter [1903] 1 Ch 27.
• [4] 113 Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, 156 (Millett LJ).
• [5] 114 Ibid. Cf Inche Noriah v Shaik Allie Bin Omar [1929] AC 127, 135 (Lord Hailsham LC).
• [6] 115 Vale v Armstrong [2004] EWHC 1160, [2004] WTLR 1471, [55] (Evans-Lombe J).
• [7] 116 Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773, 798 (Lord Nicholls).
• [8] 117 Randall v Randall [2004] EWHC 2258 (Ch), [39] (Judge Bartlett Jones QC). See Pesticcio v Niersmans
• [9] [2004] EWCA Civ 372, [2004] WTLR 699 for a case where the advice from a solicitor was not considered tohave emancipated the claimant from the effect of the undue influence.
• [10] Inche Noriah v Shaik Allie Bin Omar [1929] AC 127. 119 [1978] Ch 14.
• [11] 120 Hammond v Osborn [2002] EWCA Civ 885, [2002] WTLR 1125, [32] (Nourse LJ); Jennings v Cairns
• [12] [2003] EWCA Civ 1935, [2004] WTLR 361, [40] (Arden LJ).