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The equitable doctrine by which a will will be set aside if procured by undue influence.
In probate, undue influence must be positively proved. There is no doctrine of presumed undue influence in relation to wills. Undue influence is coercion; pressure so as to overpower the volition without convincing the judgment; see Hall v Hall (1868) LR 1 P & D 481.
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Checklist for neurodiverse clients What is neurodiversity? It is an umbrella term for conditions such as ADHD, autism spectrum, dyscalculia, dyslexia and dyspraxia which affect the way that a person interacts with the world. Sensory issues can be overwhelming for people with these conditions. However, they are often incredibly intelligent provided they can work in the way that best suits their brain. The world is moving to a position where it is not a case of those individuals who are neurodiverse adapting to fit into the world but the world adapting so they can engage with these members of society. These conditions are more common than you may think and often undiagnosed, as the person has learned to mask. Firms are increasingly focussed on inclusion and diversity and this checklist is designed to enable firms to consider their environment and to make this as comfortable as possible for all clients. Environmental Factors Sensory distractions can make it challenging for neurodiverse individuals to concentrate and focus in some office environments so...
Independent legal advice (Etridge)—checklist for a lender taking third-party security from an individual and checklist for a solicitor advising an individual in relation to granting third-party security Undue influence In a scenario where an individual provides security for the benefit of a third-party debtor there can be a presumption of undue influence in certain circumstances—for more information as to when the presumption applies, see Practice Note: Taking a guarantee or third party security from an individual—undue influence. Following the of the House of Lords in Royal Bank of Scotland v Etridge (No 2), the Law Society developed guidelines that solicitors advising security providers should follow in order to protect themselves from negligence claims. The judgment itself also clarified how a lender can protect itself against third-party security being set aside in a circumstance where there is potentially undue influence. Checklist for a lender taking third-party security from an individual In order to rebut the presumption of undue influence (see above) the lender needs to show that the security provider...
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If a Will is rational, in regular form and appears to be duly executed, the following presumptions apply:•due execution•capacity•knowledge and approvalPresumption as to due executionThe court will presume due execution if presented with a Will that, on the face of it, appears to be duly executed by applying the principle omnia praesumuntur rite esse acta (all things are presumed to be done in due form). This may be rebutted but strong evidence is required:'The strongest evidence would be required to show that a will had not been executed in accordance with the Act when it appeared from its face to have been properly executed, and there was no question but that the will represented the testator's intention. The court should be slow on the basis of extraneous evidence to hold that such a will had not been properly executed, since evidence of events that had happened years previously was likely to be unreliable. To do so would be to deprive the testator of giving effect to his wishes, which he...
Economic tort of unlawful interference As set out in The economic torts—overview, the law makes provision to protect a person’s trade or business from acts which are considered to be unacceptable. For guidance on claims for: • procuring a breach of contract, see Practice Note: The tort of procuring a breach of contract • intentional violation of rights in a judgment debt, see Practice Note: The Marex tort (interference with a judgment debt) • conspiracy (both by lawful and unlawful means), see Practice Note: Civil conspiracy claims (economic tort) • economic duress, see Practice Note: Economic duress—undue influence—tort of intimidation • intentional violation with the claimant’s rights in a judgment debt, see Practice Note: The Marex tort (interference with a judgment debt) Civil claims involving fraud and dishonesty often rely on pleading one or more of the economic torts, on which see Practice Note: Civil fraud—causes of action (heads of claim). What is the tort of unlawful interference? Causing loss by unlawful means exists where the defendant interferes with...
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Pre-nuptial agreements—client guide This document provides general guidance regarding pre-nuptial agreements. Your family lawyer will be able to provide specific advice based on your circumstances. What is a pre-nuptial agreement? A couple planning to enter a [marriage OR civil partnership] may decide to enter into an agreement that shows what they intend to happen to their money and property if the [marriage OR civil partnership] were to end. The legal rules about these agreements come from the usual laws that apply to divorce/dissolution, and also a decision of the Supreme Court in 2010 (Radmacher v Granatino) where the court said: ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’. Why enter into a pre-nuptial agreement? Everyone has their own reasons for entering into a pre-nuptial agreement. It may be that you and your...
Conflicts guidelines—private client Our Conflicts, confidentiality and disclosure policy sets out our general position on when we can act in conflict situations. We also issue guidelines for [each department OR different types of work]. These guidelines illustrate how our policy could apply in different situations, but they are not intended to be exhaustive or rigid. In each situation covered by the guidelines we must consider whether a conflict arises and, if so, whether we can act. 1 Requirement for independent legal advice 1.1 We will advise a client to take independent legal advice if they propose to make a gift in their will or during their lifetime to or for the benefit of the firm, its owners, managers or any member of staff where: 1.1.1 the gift is significant either in itself or having regard to the size of the client’s estate and the reasonable expectations of the prospective beneficiaries, and 1.1.2 the beneficiary
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What is the procedure to have the court set up a personal injury trust for a minor under CPR 21.11 and what forms and evidence are required and how should this be presented to the court? Who is the settlor of a personal injury trust for a minor? We have assumed that: • the person is a child under the age 18 but that they will not lack capacity to make decisions when they reach 18 • damages have been recovered following a trial in a personal injury claim We refer you to the resources below in considering this question. CPR 21.11 states: '(1) Where in any proceedings – (a) money is recovered by or on behalf of or for the benefit of a child or protected party; or (b) money paid into court is accepted by or on behalf of a child or protected party, the money will be dealt with in accordance with directions given by the court under this rule and not otherwise....
What formal requirements for a valid Will may cause particular difficulty during the coronavirus (COVID-19) pandemic and are there any alternatives? The formal requirements for signing a Will are found in section 9 of the Wills Act 1837 (WA 1837). The Will must: • be in writing • be signed by the testator or by some other person in their presence and by their direction • give the appearance that the testator intended by their signature to give effect to the Will • have a signature made or acknowledged by the testator in the presence of two or more witnesses present at the same time • be witnessed and each witness must attest and sign the Will or acknowledge their signature, in the presence of the testator (but not necessarily in the presence of any other witness) See Practice Note: Requirements for a valid Will for further guidance. In writing At the moment, no alternative to the requirement that a Will be in writing is available. For example, oral or...
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This week's edition of Banking and Finance weekly highlights includes: (1) the Law Commission launches a consultation on reforms to private international law in the context of digital assets and electronic trade documents; (2) ISDA publishes position paper on Commission's proposed sustainability omnibus package; and (3) the European Commission launches free sanctions compliance helpdesk for SMEs.
This week's edition of Property Disputes weekly highlights includes an analysis of a case where the Technology and Construction Court clarified the limits of recoverable loss claims for damages under the Defective Premises Act 1972, an Upper Tribunal decision overturning a remediation order citing procedural irregularities, a Court of Appeal decision on whether secured debts incurred prior to a debt moratorium are excluded, and a High Court decision dismissing a beneficial interest claim in a civil recording and possession claim under the Proceeds of Crime Act 2002.
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