Finding of actual undue influence: relevant to consider how the claimant would otherwise have acted?

Once there has been a finding of actual undue influence there is no need to ask how the claimant would have acted in the absence of the undue influence.

In UCB Corporate Services Ltd v Williams ([2002] EWCA Civ 555, CA (Eng)) a wife executed a charge over the jointly-owned matrimonial home. The charge was to provide security for a loan to the husband’s business. At first instance, the judge found as a fact that the wife had executed the charge as a result of the husband’s actual undue influence and misrepresentation. The question was whether his finding that she would have signed the charge anyway was relevant. The English Court of Appeal found that it was not relevant to the question of whether or not there was actual undue influence. Once that finding had been made, the question as to whether or not she would have signed anyway was irrelevant. The bank’s rights were affected because they had not ensured that she had been properly advised.

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