Sollis v Leyshon & Anor

Undue influence may be established through actual influence or an evidential presumption. The routes differ evidentially, but the legal concept is the same. Influence must be undue: the resulting consent must not fairly be treated as the person’s free will. A relationship involving ascendancy, combined with a transaction calling for explanation, may support a presumption. Legal advice does not automatically rebut that presumption. The court must be able to infer that the decision followed full, free and informed thought. Where a vulnerable person transfers their home and principal asset to a person exercising ascendancy, the transaction may be set aside even though the transferor understood its legal effect.

Mrs Sollis claimed damages for money allegedly taken from her bank accounts by her daughter and son-in-law, and sought to set aside a transfer by way of gift of her home. The defendants said that the expenditure was authorised and that the property had been transferred voluntarily. The property was later sold and the proceeds were used to purchase another property, into which Mrs Sollis sought tracing relief.

The court heard conflicting evidence concerning Mrs Sollis’s health, confusion, vulnerability, the defendants’ control over her, the expenditure and the circumstances in which the transfer was made. The central legal issue was whether the transfer had been procured by undue influence.

1. Claim succeeded. The court found that Mrs Leyshon had exercised significant control over her mother, who was confused, lacking in confidence and socially isolated. Mrs Leyshon had acquired ascendancy over her, and the transfer of Mrs Sollis’s home and remaining substantial asset called for an explanation.
2. Following Royal Bank of Scotland Plc v Etridge (No 2) [2002] 2 AC 773, actual and presumed undue influence were different evidential routes to proving the same legal concept. Influence alone was insufficient. It had to be undue, in the sense that the consent produced could not fairly be treated as the transferor’s free will. The transaction and relationship justified an evidential presumption.
3. The explanations advanced for the transfer, including expenditure on the property, debts paid and advances made to Mrs Sollis’s son, did not adequately explain an outright gift of property later sold for approximately £275,000. Earlier wills leaving the property to Mrs Leyshon made the immediate inter vivos transfer more questionable, because a will would have allowed Mrs Sollis to retain ownership and revoke the gift.
4. Legal advice from Ms Lake did not rebut the presumption. There was no duty on the solicitor to advise Mrs Sollis not to transfer the property, but advice could suffice only where it was proper to infer that the decision followed full, free and informed thought. Mrs Leyshon had chosen the solicitor, remained nearby while advice was given, and Mrs Sollis remained dependent on her for transport and future care. That inference could not be drawn.
5. The transfer was therefore procured by undue influence and it was unconscionable for the defendants to insist on beneficial ownership. Equitable relief was traced into the equity of the replacement property. The counterclaim for allowances for debts, mortgage payments and works failed because any relevant understanding resulted from the undue influence.
6. For the unauthorised expenditure claim, the court assessed damages at £36,500 after allowing approximately 20 per cent for uncertainty, confusion, lapse of time and authorised contributions.

First instance decision. No prior appellate decision is stated in the judgment.