The equitable doctrine of undue influence.

Independent advice.

Winifred Carroll and Mary Jane Carroll - v- Michelle Carroll. Unreported Supreme Court. July 21st 1999.

Whenever there is a voluntary conveyance and the same solicitor acts for both transferor and transferee there is a presumption of undue influence. The Supreme Court in Carroll -v- Carroll placed particular emphasis on the role of independent legal advice in this area of the law and examined in detail the qualitative nature of such advice. The Court concentrated on the independence of the legal advisor, and, moreover on his knowledge of the facts surrounding a conveyance of a public house together with residential accommodation. This can equally apply to a farm with residential accommodation.

The facts in each individual case have to be very carefully scrutinized but there is a strong presumption of undue influence and it is extremely difficult to rebut this presumption by the person or persons who want to maintain the status quo under the voluntary transfer. I might even go so far as to say that the presumption of undue influence is too strong as to be almost impossible to rebut.

In another case of Powell -v- Powell 1900 C.H. 243 wherein it was held that:

1. A solicitor who acts for both parties cannot be independent of the donee in fact; and

2. Any advice given must consist of a full explanation of the nature and effect of the transaction, which could only be done once all of the relevant circumstances were known to the advisor.

It follows that a solicitor should never act on both sides of any voluntary conveyance.

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