Undue influence and unequal treatment of children

By: Fanny Marshall

Date: 19 June 2009

Where one child seems to have benefited disproportionately from a parent’s generosity, it can lead to allegations of undue influence from brothers and sisters who have lost out. A recent case shows how inequalities can be justified and how a parent can take steps to reduce such disputes after their death. 

A son appointed as her attorney by his mother sold her house in 1993. However, she personally dealt with the solicitor handling the sale, including instructing him to pay the proceeds of the sale to her son.

The woman’s daughter claimed a share in the proceeds of sale. She said that her brother had used undue influence over their mother in order to get the entire sale proceeds.

There was no evidence of overt acts of improper pressure or coercion by the son, so the onus was on the daughter to present evidence that raised a presumption of undue influence.

Twofold test for presumption

A parent’s failure to treat their children equally is not, in itself, evidence of undue influence. Rather, she needed to show there was “a relationship of trust and confidence” between her mother and brother (that is, that there was some dependency of the mother on the son – for example, because she was older and relied on his judgment or acumen), and that the transaction itself “called for an explanation”.

Evidence from the solicitor who handled the sale was that the mother was aware of what she was doing, and the consequences. The effect had been explained to her, and she had understood. Further evidence also showed that she was a woman of strong character, and that she had not subsequently shown any remorse over the gift. There was no evidence of dependency.

The sum involved was substantial, and giving it to her son left the mother unable to afford a property of her own, so the transaction did call for some explanation. Significantly, however, evidence was also given that the mother was aware that her son had lent the daughter money for her business, which had subsequently failed. This provided a possible explanation for the transaction.  

Other common instances where parents may treat children unequally are where one child has already received money – for example, to help buy a house or pay for a course. Another is where one child has given up time or an opportunity to look after or help the parent. In these circumstances it is reasonable to reward them, at the expense of their siblings. Or the inequality may be a punishment for the child’s behaviour.

Overall, the court decided that there was no undue influence.  

Recommendations

A parent making unequal provision for their children (or grandchildren) should state in writing – for example, in their will, or in a separate letter of guidance to executors:

  • That they understand what they are doing, and its consequences.
  • The reason for the inequality.
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