Undue influence

USB Corporate Services Ltd v Williams (CA TLR 27 May)

Undue influence is exerted when improper means of persuasion are used to procure the complainant’s consent to participate in a transaction such that the consent thus procured ought not fairly to be treated as the expression of the complainant’s free will. In such a case equity proceeds on the basis that the complainant did not consent to the transaction. There is no reason in principle why a husband who has fraudulently procured the consent of his wife to participate in a transaction should be able, in effect, to escape the consequences of his wrongdoing by establishing that had he not acted fraudulently, and that had his wife had the opportunity to make a free and informed choice, she still have acted in the same way. The fact was that the husband’s fraud deprived the wife of the opportunity to make such a choice and it was that fact which founded the wife’s equity, as against her husband, to set aside the transaction. It was not necessary for her to establish that, absent the equitable fraud, she would not have executed the charge.