This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Daughter ordered to repay gifts from mother obtained by undue influence
17 October 2014

Daughter ordered to repay gifts from mother obtained by undue influence

In the recent case of Hart v Burbidge & others [[2014] EWCA Civ 992], the Court of Appeal upheld a decision that Mrs Burbidge (and her husband) had unduly influenced her mother, Phyllis Hart, in respect of three related lifetime transfers in the total sum of £700,000.

Phyllis Hart's last Will made a number of specific legacies to her siblings, children and grandchildren. However, in the months leading up to her death, she gave away around 90% of her assets to her daughter. The effect of this meant that the gifts in the Will to her sons adeemed (failed).

Despite a souring of the familial relationships, it was not found that Mrs Burbidge had poisoned her mother's affections as against her brothers.

In lifetime transactions, in contrast to Wills where it is necessary to evidence actual undue influence, it is possible to set aside the transaction as a result of presumed undue influence, where, as was the case here (i) the alleged gifts made shortly before her death were found to be such that an explanation was called for and (ii) there was a relationship of influence or "trust and confidence, reliance and dependence". 

As a consequence, the burden shifted to Mrs Burbidge to rebut the presumption that she had unduly influenced her mother in relation to the gifts.   Mrs Burbidge failed to rebut that presumption and the Court was not satisfied that her mother was acting fully independently of undue influence at the time of the gifts.

In their appeal, Mr and Mrs Burbidge argued that the judge had erred in relation to the alleged undue influence itself, the appropriateness of the restoration orders and his order for costs.

The Court of Appeal upheld the lower Court's finding that the transactions had been procured by undue influence and granted an order requiring Mr and Mrs Burbidge to reimburse the Deceased's estate in order to restore it to the position that would have existed had the transactions not taken place. Further, Mr and Mrs Burbidge were ordered to pay 95% of the Claimants' costs.

Allegations of undue influence are often highly fact sensitive and this case provides interesting commentary and analysis of the authorities dealing with presumed undue influence.  It also demonstrates how the Court will seek to be flexible in awarding suitable remedies where undue influence is proved.