Wills and Probate

In 2001 William Hogg set up two settlements (the settlements). His son (R) and daughter (A) were appointed as trustees. There was an additional earlier settlement of shares in a family company which benefited A and another daughter S, but not R.

R was initially a beneficiary and trustee under the settlements until Mr Hogg executed deeds removing R as trustee and excluding him from benefiting under both settlements. R claimed that Mr Hogg had entered into the deeds of exclusion and removal by virtue of undue influence exerted on him by A.

In considering the claim, Mr Justice Lindsay noted that where undue influence is asserted:

“The personalities involved become relevant. A factor in judging whether a given transaction has been a product of undue influence includes an examination of how the ‘victim’ behaved normally, when free from influence.” (para 44)

The evidence in the case did not paint a picture of Mr Hogg as a man who was likely to be easily persuaded against his will. It also portrayed a person whose “beliefs paid little regard to a commonly recognised need for equality of disposition to children”.

Lindsay J accepted that Mr Hogg did repose trust and confidence in A who was his primary carer, but held that the transactions could be sufficiently accounted for by ordinary motives. The evidential burden of proving undue influence remained on R, therefore, and he had failed to satisfy it for the following reasons.

(i) A’s position as Mr Hogg’s carer was not secure or assured.

(ii) Mr Hogg had a motive to enter into the deeds since he appears to have believed R was under the influence of a person he had a strong dislike for and whom he did not trust.

(iii) The deeds were drawn up by a solicitor who “had sufficient contact with the family to be able to give detailed evidence on the deeds”. He was trustee of one of the settlements, had administered Mr Hogg’s wife’s estate, and had prepared a will for Mr Hogg. He had two meetings with Mr Hogg to take instructions on preparing the deeds.