Lifetime gifts may be challenged if the person who made the gift (the donor) did so as the result of undue influence exerted over them by the person receiving the gift (the donee).
Where it can be shown that the donor has been unduly influenced, the court may order that the gift be set aside, in other words, that the gifted property or assets effectively be returned to the donor.
One example is where the donor has transferred land belonging to them to the donee, who may often be a relative of the donor, but the transfer was not carried out as an act of the donor’s own free will.
Sometimes the gift and/or undue influence may only be uncovered following the donor’s death. In such circumstances, the gift would typically challenged by the beneficiaries of the donor’s Will, or someone who would have otherwise stood to benefit if the lifetime gift had not been made.
However, there are instances where the undue influence may come to light during the donor’s lifetime and they wish to challenge the gift themselves and set things right.
What is Undue Influence?
There are two types of undue influence:
“Actual” undue influence
This involves explicit acts of wrongdoing, pressure and coercion by the donee. Some examples include threats of harm or threatening to withdraw care from the donor if they don’t make the gift.
“Presumed” undue influence
This is where there is a legal presumption that the gift was made as a result of undue influence (and therefore not as the result of the donor’s own free will).
This presumption will arise where:
- There is a relationship of trust and confidence between the done and the donor. Common examples include an elderly parent and their adult son or daughter, or a donor and their caregiver; and
- The gift requires an explanation. This will often be the case where the gift is of a large value that is disproportionate to donor’s other assets.
If it can be shown by the donor that there was a relationship of trust and confidence between them and the donee, and if the gift is one which requires an explanation, the burden of proof then shifts to the donee.
It will then be for the donee to prove on the balance of probabilities that the gift was made as the result of the donor’s own full, free and informed thought and that the donor acted free from any undue influence exerted by the donor when making the gift.
The court will look at whether the donor was susceptible to undue influence, for example, where the donor is elderly or vulnerable in some other way to the influence of the donee.
What evidence will I need?
Witness evidence from the parties and any professionals involved with making the gift will often be crucial in determining whether the gift was made as the result of undue influence and therefore whether it is capable of being set aside.
Other individuals who have direct knowledge of any relevant events may also be in a position to provide useful evidence.
Witness evidence is often regarded as less reliable as time goes on, and so this is something that will often need to be addressed by your legal team at the outset.
Other evidence may include documentation relating to the gift, for example, where land has been transferred by the donor to the donee, documents relating to the transfer of the land and the file of papers for any firm of solicitors acting in relation to that transaction.
It is very important that you do not destroy or delete any documents.
Potential Red Flags to Watch Out For
- The gift is disproportionately large compared to the donor’s other assets and may leave very little in the donor’s estate to give to other beneficiaries;
- The gift is different to what the donor’s previous Will(s) provided;
- An unexpected person in receipt of the gift (e.g. donor’s carer, nurse or other medical professional; a ‘new’ friend; or a family member who was previously estranged but suddenly came back into the donor’s life);
- The donor isn’t aware of the exact nature, extent, and/or practical effect of the gift;
- The donee accompanied the donor to solicitors’ meetings;
- The donee provided instructions to solicitor or accountant ostensibly “on behalf of” the donor;
- Any correspondence regarding the gift was sent to the donee directly professional(s) involved in arranging for the gift to be made, instead of being sent to the donor directly (sometimes the donee may attempt to explain this away as being simply for convenience where the donor doesn’t have their own email address, for example);
- The donor did not receive their own independent legal advice that fully explains the nature and the effect of the proposed transaction in plain, simple language;
- Advice was given to the donor regarding the gift at an in-person meeting, but this was not followed up in writing to the donor;
- The transaction being rushed into without the donor having time to reflect on the potential impact; and
- The donor being isolated from their usual support network, such as other family members or friends.
Mental Capacity
Undue influence claims may involve issues as to whether or not the donor had the requisite mental capacity to make the transfer at the time, or whether they now have the necessary capacity to litigate.
If there are any issues regarding the donor’s mental capacity, a doctor will often need to carry out an assessment and copies of the donor’s medical records may need to be obtained.
It is important that this is addressed at the outset.
Time Limits
There may be certain time limits that affect the ability to bring a successful undue influence claim. It is therefore important to take legal advice as soon as possible.
Contact our dispute resolution team
Ultimately, claims involving undue influence are rarely straightforward. They require careful analysis of relationships, evidence, and intention often at a time when emotions and relationship dynamics are already under strain. Acting promptly and taking a clear, strategic approach can make a significant difference to the outcome.
Whether you are seeking to challenge a lifetime gift, defend a claim, or simply understand your position, early legal advice is essential. Our specialist team combines technical expertise with a pragmatic, sensitive approach, ensuring your interests are protected while navigating what can be complex and personal circumstances.
If you have concerns about a lifetime gift or believe undue influence may be at play, contact our team today for a confidential discussion. For an initial fixed fee, we will provide a clear assessment of your options and guide you through the next steps.
Key Contact
Charlotte McCubbin
Dispute Resolution Associate Solicitor
Charlotte has experience in a range of commercial and private disputes, with a particular focus on debt recovery claims. Her experience also includes breach of contract claims, assisting in shareholder disputes, and other general commercial litigation.
