Undue influence

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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[edit]

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:

  • Presumed undue influence
  • Actual undue influence [2]

Presumed undue influence[edit]

First subgroup[edit]

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

  • Government/citizen (Note this is not confirmed) [3]
  • Parent/child:[4]
  • Guardian/ward:[5][6]
  • Religious adviser/member of the flock:[7]
  • Solicitor (attorney)/client:[8] [9]
  • Doctor/patient:[10] (note this exclude dentist and patient [11])

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.

Second subgroup[edit]

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 there was a relationship of such trust and confidence that it should give rise to such a presumption (see Johnson v. Buttress (1936) 56 CLR 113).

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. 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[edit]

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.[12] 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. [13]

In probate law[edit]

"Undue influence" is the most common ground for will contests and are often accompanied by a capacity challenge. In probate law, it is generally defined as a testator's loss of free agency regarding property disposition through contemporaneous psychological domination by an advisor which results 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. In litigation most jurisdictions place the burden of proving undue influence on the party challenging the will. Therefore a contract may be seen as undue influence when one party uses his/her influence he has on the other party to persuade him into entering into a contract or transfer of property which is disadvantagious to the influenced party

See also[edit]


  1. ^ Johnson v Buttress [1936] HCA 41 [3] AustLII
  2. ^ Farmers' Co-Op Executors & Trustees v Perks (1989) 52 SASR 399
  3. ^ R v Attorney General for England and Wales
  4. ^ =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
  5. ^ Johnson v Buttress [1936] Dixon J, High Court of Australia
  6. ^ Powell v Powell [1900] 1 Ch 243
  7. ^ 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
  8. ^ Re P's Bill of Costs (1982) 45 ALR 513 at 521-5; Westmelton (Vic) Pty Ltd v Archer and Shulman [1983 VR 305];
  9. ^ see also Haywood v Roadknight [1927] VLR 512 AustLII
  10. ^ Dent v Bennett (1839) 4 My & Cr 269; 41 ER 105; Williams v Johnson [1937] 4 All ER 34
  11. ^ Brooks v Alca (1976) 60 DLR (3d) 577
  12. ^ 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
  13. ^ See Justice Starke in Johnson v Buttress [1936] HCA 41 [3] AustLII