The elderly and undue influence inter vivos

Abstract

An important demographic and social trend is becoming indisputably evident in the UK. The population is ageing, and a clearly discernible group of elderly persons is growing. As this trend continues, it will be necessary to reconsider the effectiveness and application of the law from the perspective of the elderly claimant. While it has been recognised that there must be a legal scheme to oversee the care and protection of persons, including elders, who are unable to care for their interests due to severe disability, it is becoming evident that even elders who are apparently healthy and able may be vulnerable. Undue influence inter vivos is a significant legal doctrine upon which elderly people have relied in recent times to set aside gifs, contracts and guarantees which they (or their representatives) have considered in hindsight were not in their best interests. This paper seeks to provide an analysis of and contribute to an understanding of the doctrine of undue influence from the perspective of the elderly claimant in the UK. The paper considers actual and presumed undue influence and the impact of the House of Lords decision in Royal Bank of Scotland plc v Etridge (No2). It will be argued that the law of undue influence inter vivos is in transition from a nineteenth-century doctrine which did not confer a special legal status on the elderly to one which is applied in the context of an increasing recognition that the events leading up to the transaction and the circumstances of the case may indicate that elders need the relief which the doctrine affords. Nevertheless, the transition to a modem system of undue influence for the elderly is incomplete. There remain outstanding issues which need consideration before it can be said that there is a comprehensive or logically coherent approach to elders and undue influence.

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