Undue influence

In jurisprudence, undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. This inequity in power between the parties can vitiate one party's consent as they are unable to freely exercise their independent will.[1]

In contract law

A contract may be seen as undue influence when one party uses undue influence to persuade another party into entering into a contract or the transfer of property which is disadvantageous to the influenced party.[2] If undue influence is proved in a contract, the contract is voidable by the innocent party, and the remedy is rescission. There are two categories to consider:

  1. deemed relationship of influence - relationships that raise the premise, as a matter of law, that influence has been utilised[5]
  2. relationship of influence in fact - where the complainant ensconces that trust and confidence was bestowed in the wrongdoer and therefore a presumption of influence should be recognised[6]

Presumed undue influence

First subgroup

In the first subgroup, the relationship falls in a class of relationships that as a matter of law will raise a presumption of undue influence. Such classes include:

In such cases, the burden of proof lies on the first of said parties (e.g. the government, parent, or doctor) to disprove undue influence on the second party. This requires the dominant party to establish that the second party "knew and understood what he or she was doing, and that he or she was acting independently of the influence of the dominant party".[16][17] One influential factor in deciding whether the second party was acting independently is whether he or she was given an independent advice, while such an advice is not indispensable for rebutting the presumption.[18]

Second subgroup

The second subgroup covers relationships that do not fall into the first subgroup, but on the facts of case, there was an antecedent relationship between the parties that led to undue influence. The test is one of whether "“one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part".[19] If the plaintiff satisfies this a presumption of undue influence will arise, to which the onus of proof transfers to the defendant, who thereon, must rebut that "in all the circumstances", the relationship between the parties involved "dealings were at arm’s length and that the other’s will was in no way overborne by the relationship of confidence" that existed.[20]

In Garcia v National Australia Bank (1998) 194 CLR 395, the High Court of Australia approved the principle in Yerkey v Jones [1939] HCA 3 by distinguishing between cases of actual undue influence and situations where the transaction is set aside because the guarantor does not understand the nature of the transaction.[21] Although there is no presumption of undue influence, a "lender is to be taken to have understood that, as a wife, the surety may repose trust and confidence in her husband in matters of business and therefore to have understood that the husband may not fully and accurately explain the purport and effect of the transaction to his wife; and yet... did not itself take steps to explain the transaction to the wife or find out that a stranger had explained it to her."

Actual undue influence

An innocent party may also seek to have a contract set aside for actual undue influence, where there is no presumption of undue influence, but there is evidence that the power was unbalanced at the time of the signing of the contract.,[22][23] Factors such as age, mental capacity and literacy of the donee, among other considerations such as the nature of the transaction (fair or unfair) will help determine actual undue influence.[24] There is no requirement of manifest disadvantage.[25]

In Farmers' Co-Op Executors & Trustees v Perks,[3] a wife transferred her interest as tenant in common on a farming property to her husband; the property was owned jointly be the husband and herself. There was evidential proof that there was a long history of brutal domestic violence inflicted by the husband on the wife, whereby he ended up murdering her. There was a presumption that the wife only transferred her interest to the husband because of undue influence and evidence proved that the transfer resulted from actual undue influence. It was because of the history of violence that resulted in the judge setting aside the transfer.[26]

In probate law

"Undue influence" is the most common ground for will contests and are often accompanied by a capacity challenge. That is, someone in possession of full mental capacity is not likely to be swayed by undue influence, manipulation, or coercion. In litigation most jurisdictions place the burden of proving undue influence on the party challenging the will. Undue influence can be very difficult to prove, and the mere appearance of undue influence is inadequate to challenge the validity of a will.[27]

In probate law, undue influence is generally defined as a testator's loss of free agency regarding property disposition through contemporaneous psychological domination by an advisor, resulting in an excessive benefit to the advisor. It is important to note that "undue influence" is only an issue when the advisor is benefiting, not when advisor is getting a benefit for someone else; in that case it would be considered fraud.[28]

In Germany, to avoid undue influence it is illegal for a testator who is or has been a resident of a nursing home to bequeath any property to any employee of the nursing home.[29]

See also


  1. Johnson v Buttress [1936] HCA 41 [3] AustLII
  2. Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 AustLII
  3. 1 2 Farmers' Co-Op Executors & Trustees v Perks (1989) 52 SASR 399
  4. Paterson, Jeannie; Robertson, Andrew; Duke, Arlen (2012). Principles of Private Law (Fourth ed.). Sydney: Thomson Reuters (Professional) Australia Limited. p. 701.
  5. Paterson, Jeannie; Robertson, Andrew; Duke, Arlen (2012). Principles of Contract LAw (Fourth ed.). Sydney: Thomson Reuters (Professional) Australia Limited. p. 701.
  6. Paterson, Jeannie; Robertson, Andrew; Duke, Arlen (2012). Principles of Contract Law (Fourth ed.). Sydney: Thomson Reuters (Professional) Australia Limited. p. 702.
  7. R v Attorney General for England and Wales
  8. =Bainbrigge v Bowne (1881) 18 Ch D 188 at 196; London and Westminster Loan and Discount Co Ltd v Bilton (1911) 27 TLR 184; see also West v Public Trustee [1942] SASR 109 AustLII
  9. Johnson v Buttress [1936] Dixon J, High Court of Australia
  10. Powell v Powell [1900] 1 Ch 243
  11. Allcard v Skinner (1887) 36 Ch D 145; See also McCulloch v Fern [2001] NSWSC 406 AustLII, Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810 AustLII
  12. Re P's Bill of Costs (1982) 45 ALR 513 at 521-5; Westmelton (Vic) Pty Ltd v Archer and Shulman [1983 VR 305] AustLII;
  13. see also Haywood v Roadknight [1927] VLR 512 AustLII
  14. Dent v Bennett (1839) 4 My & Cr 269; 41 ER 105; Williams v Johnson [1937] 4 All ER 34
  15. Brooks v Alca (1976) 60 DLR (3d) 577
  16. Tulloch (deceased ) v Braybon & ors (No 2) [2010] NSWSC 650, [40] AustLII
  17. see also Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180 AustLII
  18. Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 BAILII
  19. Johnson v Buttress [1936] HCA 41 AustLII, see also Thorn v Boyd [2014] NSWSC 1159 Westlaw AU; "Agripay Pty Limited v. Byrne" [2011] QCA 85 AustLII
  20. Westmelton (Vic) Pty Ltd v Archer and Shulman [1982] VR 305 AustLII
  21. Garcia v National Bank Australia Ltd 194 CLR 395 [113] AustLII
  22. see Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 (12 May 1983) http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1983/14.html?stem=0&synonyms=0&query=amadio AustLII,
  23. see also Westmelton Pty Ltd v Archer and Schulman [1982] VR 305 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VicRp/1982/29.html?stem=0&synonyms=0&query=title(Westmelton%20and%20Archer%20)
  24. See Justice Starke in Johnson v Buttress [1936] HCA 41 [3] AustLII
  25. See Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 (28 March 1956) AustLII
  26. Patterson, Jeannie; Robertson, Andrew; Duke, Arlen (2012). Principles of Private Law. Sydney: Thomson Reuters (Professional) Australia Limited. p. 703.
  27. Core v. Core’s Administrators, 124 S.E. 453 (Va. 1924).
  28. Time Limit and Grounds for Contesting a Will. Accessed May 15, 2015 - Going Legal Limited.
  29. Ronald J. Scalise Jr., Undue Influence and the Law of Wills: A Comparative Analysis, 19 DUKE J. COMP. & INT’L L. 41, 99 (2008).
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