Undue Influence – Inche Noriah v Shaikh Allie Bin Omar

Facts: An Old illiterate Malay woman had executed a deed gift to her nephew.

Judgment: There is a presumption of undue influence

Case:

Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough to establish that it was almost her entire estate, and had not advised her that a better way to achieve the result would be by will.

Held: The gift failed for undue influence. Usually a presumption of undue influence may be rebutted by showing that the transaction was entered into ‘after the nature and effect of the transaction had been fully explained to the donor by some independent qualified person.’

However (Lord Hailsham LC): ‘their Lordships are not prepared to accept the view that independent legal advice is the only way in which the presumption can be rebutted.’ and ‘It is necessary for the donee to prove that the gift was a result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely to satisfy the court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there can there are no other circumstances this may be the only means by which the donee can rebut the presumption.’

My Comments:

According to sec 16, A person may rescind a transaction when he or she was pressured to enter into te contract by the influence of the other. A person in a position to dominate the will of other person if he enters into a contract with a person whose mental capacity is temporarily affected or age.

The elderly aunt, a woman enfeebled by age, is induced, by her nephew influence over her because of her age, agree to gift all of her property. But he had not brief her enough about the situation. So the elderly aunt employs undue influence.

http://swarb.co.uk/inche-noriah-v-shaik-allie-bin-omar-pc-1929/