Few people other than lawyers will have heard of the legal doctrine of undue influence. However, more will be familiar with the novel of that name by Anita Brookner.1 There the ‘undue influence’ of the title relates to the efforts made by the central character, Claire Pitt, to pursue the affections of Martin Gibson, an intelligent and handsome but ineffectual man who wanders into the dusty old bookshop where she is employed for a pittance by two elderly sisters. She imagines him as a man who has always been subject to coercion, his weakness excites her, and at the time of their meeting he is in thrall to the whims of a dominant and invalid wife. This theme of unsatisfactory relationships, characterised by a selfish dominance on one side and an excessively anxious desire to please on the other, is repeated again and again throughout the book, ranging from Mrs Hilditch and her son at the beginning of the book to the little girl Arabella and her grandmother at the end. Yet in all these situations, unhappy though they be, there is an element of choice—an element of advantage for both sides. Thus Claire speculates in relation to her mother that it ‘probably reassured her to be taken over by a will stronger than her own’.2 In his turn Martin, who has been weaned away from his academic career by his overbearing wife Cynthia, ‘exchanges the library for the sickroom and servitude, and loyally makes that servitude his reason for living’.3 Not for nothing does Claire speculate as to whether she was witnessing ‘one of those terrible relationships in which each party fed off the other’.4
All of this may seem far from the arid technicalities of contract, equity and probate. Yet it is with the consequences of precisely this sort of relationship that these branches of the law in general, and the doctrine of undue influence in particular, often have to deal. The question for this chapter is to what extent, if at all, understanding the emotional dynamics of these relationships can help to illustrate and inform the law. To answer this question we need to explore the notion of undue influence in legal terms before turning to the insights of psychology and other disciplines.
Undue influence in legal terms is one of a family of related doctrines that allows a party to a transaction, or someone claiming on his or her behalf, to set that transaction aside on the grounds that it was procured by unfair means. Broadly speaking, these doctrines cover three situations. In the first situation, the party in question was misled in some way. In the second, the transaction was entered into as a result of coercion. In the third, the nature of the relationship between the parties, combined with the nature of the transaction itself, is said to call for a satisfactory explanation from the party who wishes to rely on the transaction; if this is not forthcoming, the transaction will be set aside. To a certain extent the legal concept of undue influence straddles all three of these situations, but the law is not easy to explain, not least because of the way in which it has developed. What is clear is that the doctrine operates in two distinct ways, depending on whether the impugned transaction was a will or some transaction made inter vivos—that is to say, between two living people. We shall begin with the second situation, as it is of far greater legal significance.
Where an inter vivos contract or gift5 has been procured by undue influence, the basic rule in English law is clear: it can be set aside by the person on whom that influence has been exercised.6 However, this picture is complicated by a number of factors, most notably the bringing into play of various ‘presumptions’ involving the existence of what is termed a ‘relationship of trust and confidence’ between the parties. Though there is currently some disagreement as to how precisely the cases should be classified,7 the traditional approach is to divide them into two categories,8 as can be seen from what has become the standard exposition of the law by Lord Nicholls of Birkenhead in Royal Bank of Scotland v Etridge (No 2).9 Having identified the rationale of the law as being to ensure that the influence of one person was not abused by unacceptable means of persuasion,10 he went on to say that there were two ways recognised by the law in which this might be done.11 The first of these comprised overt acts of pressure or coercion such as unlawful threats, whereas the second arose out of a relationship between two persons where one had acquired over the other a measure of influence, or ascendancy, of which the ascendant person then took unfair advantage.12
In the first category there need be no relationship of trust and confidence. These are sometimes called cases of ‘actual’ undue influence.13 Here the essence of the complaint is that one party has been guilty of ‘unfair and improper’ conduct; such conduct can involve either deception,14 or coercion,15 or both.16 In most cases this will have resulted in some advantage to the guilty party, but it seems that this is not an essential requirement.17 We shall be discussing the emotional dynamics of this kind of situation more fully at a later stage, but it will already be obvious that cases of this sort do not necessarily involve any kind of attachment between the parties; if any kind of emotion is present, it is just as likely to be fear of the consequences that may ensue if agreement is not forthcoming to what is proposed by the guilty party.
In cases of the second sort the party who wishes to set the contract aside does so by proving not that undue influence was actually used, but rather: (1) that the relationship between the parties was such as to give rise to the risk of such influence being brought to bear; and (2) that the transaction is one which, while not necessarily manifestly disadvantageous to the weaker party, was such as to call for some explanation.18 With regard to the first of these two requirements, the relationship is termed one of ‘trust and confidence’,19 and it can be established in two ways, either by showing that it fell into one of a list of accepted categories where such trust and confidence can be presumed to exist, such as doctor and patient, solicitor and client, or religious leader and disciple,20 or by showing that such a relationship existed on the facts.21 It will be apparent that in cases of the former kind we have in effect a double presumption, one being that the relationship was one of trust and confidence in the first place, and the other being that it involved the exercise of undue influence on the weaker party.22 In either case, however, the burden on the party wishing to uphold the contract will be the same; he or she must show that despite the existence of the impugned relationship, the other party entered into the contract after ‘full, free and informed thought’.23 Though the law does not prescribe as such how this should be done,24 the best way of proving that this is the case is by demonstrating that the party concerned had independent legal advice.25 Once again, we shall be discussing the emotional dynamics of this kind of case later, but clearly they will be very different from those involved in cases of actual undue influence; in particular, the focus will be on trust rather than on fear, and there is more likely to be some degree of emotional attachment between the parties.
The law of succession also allows for a will to be challenged on the ground of undue influence,26 but this doctrine—generally known as ‘testamentary’ or ‘probate’ undue influence27—is much narrower in scope.28 In particular, the notion of a relationship of trust and confidence has no part to play here; rather, the doctrine is restricted to cases of actual coercion, where it can be said, in the words of the then future Lord Penzance, that the testator has been ‘driven’ rather than ‘led’.29 However, this does not mean that a will cannot also be challenged on the basis of the sort of factors that we have been discussing above. On the contrary, there are several possibilities here; for instance, there may be a challenge on the basis of lack of testamentary capacity,30 or fraud,31 or lack of ‘knowledge and approval’—that is to say that the testator knew the contents of the will and approved of them.32 But none of these will help in a case where the testator knew full well what he or she was doing at the relevant time, but where the relationship between testator and beneficiary was such as to raise the suspicion that the former did not exercise ‘full, free and informed thought’.
However, there is also another possibility, and that is to use what has been termed the ‘suspicious circumstances’ rule.33 As with the inter vivos version of the undue influence doctrine, this works by way of a rebuttable presumption. Where it is shown that the testator had testamentary capacity and that the will was duly executed, the court will normally infer that he or she knew and approved of the contents of the will.34 However where it can be shown that there was something suspicious about the circumstances in which the will was drawn up and executed, those who seek to uphold the will may be placed under the affirmative burden of showing that all was fair and above board.35
As the cases show, such circumstances may include the existence of a relationship of trust and confidence between the testator and the beneficiary.36 However, though in many cases this rule may work in the same manner as the inter vivos doctrine of undue influence, the two are not identical in content. In particular, though the ‘suspicious circumstances’ rule may encompass cases where a relationship of trust and confidence exists, it is much wider in scope.37 Moreover, the nature of the burden placed on the party seeking to benefit is not the same in the two cases. In the inter vivos context, as we have seen, the test is whether the other party entered into the transaction after ‘full, free and informed thought’.38 In relation to a will, the position is less clear; according to Lord Hatherley, any person who has been instrumental in drawing up a will under which he or she takes a benefit has the onus of showing ‘the rightness of the transaction’,39 but others suggest that what has to be shown is merely ‘knowledge and approval’.40 Whichever test is correct, it is clear that the emotional dynamics of this kind of case may be very different from those which arise in cases of inter vivos undue influence.
Though the basic principles surrounding undue influence, whether in the testamentary context or inter vivos, are reasonably clear when seen, as it were, from a distance, numerous difficulties appear once the law is examined more closely. In particular, there are problems relating to the internal and external structure of the law, and as to its rationale. We shall now examine these more closely, with a view to considering later on in the chapter whether and to what extent an analysis in terms of emotional dynamics can point towards a solution to some or all of these.
As we have seen, testamentary undue influence is confined to cases of coercion, whereas inter vivos undue influence covers not only ‘actual’ undue influence (Class 1), but also cases where a so-called relationship of trust and confidence can either be presumed to exist (Class 2A) or proved on the facts (Class 2B). Class 1 and Class 2A are relatively straightforward, but the cases do not make it very clear where Class 2B fits into the picture, or even whether it exists at all as a separate category. The problem is that at the end of the day the claimant has to prove undue influence in Class 2B cases no less than in Class 1.41 In the words of Lord Scott, the so-called ‘presumption’ in Class 2B cases is said to be doing
no more than recognising that evidence of the relationship between the dominant and subservient parties, coupled with whatever other evidence is for the time being available, may be sufficient to justify a finding of undue influence on the balance of probabilities.42
The onus shifts to the defendant to counteract this by evidence, rather as in relation to the res ipsa loquitur principle in the context of the law of tort.43 Another problem in relation to this presumption is what precisely has to be proved to bring a case within Class 2B. Traditionally this is expressed in terms of a relationship of ‘trust and confidence’, but what precisely does this mean? In 1985 Lord Scarman deprecated references to ‘confidentiality’ in this connection, pointing out that there were plenty of confidential relationships which did not give rise to any presumption of undue influence, such as husband and wife.44 He went on to couch the doctrine in terms of ‘victimisation’ and dominance by one party over the other,45 but this requirement too has been denied, on the grounds that it is enough to show that the party in whom the trust and confidence has been reposed is in a position to exert influence over the one who reposes it.46 The trouble with this is that this can be said of almost any relationship of such a nature, for how can one person have trust and confidence in another without that other being in a position to exert at least some influence over him or her?
A closely related question is as to how undue influence relates to other legal doctrines of a similar nature. We have already seen that in the testamentary context the right to challenge a will on the grounds of undue influence is complemented by other doctrines, most notably the ‘suspicious circumstances’ rule.47 In the same way, a contract or other transaction inter vivos can be rescinded not only for undue influence but also for misrepresentation (on the basis of a false statement of some kind),48 or duress (as the result of an illegitimate threat),49 or on the grounds that it constitutes an ‘unconscionable bargain’.50 Cases of misrepresentation clearly fall into a separate category, but how the others fit together is not at all clear.51 Attempts have been made from time to time to discern an underlying principle, most notably by Lord Denning in a case in 1975 in which a charge executed by an elderly man on his farm to support his son’s failing business was set aside by the Court of Appeal on the grounds of undue influence from the bank.52 In the course of his judgment Lord Denning conducted an exhaustive review of the cases53 and came up with the following statement of principle:
Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on ‘inequality of bargaining power’. By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract upon terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other.54
However, the other members of the Court preferred to decide the case on the more traditional grounds of undue influence in its technical sense,55 and Lord Denning’s analysis was later deprecated in the House of Lords by Lord Scarman.56 However, what is of interest is the way in which Lord Denning seeks to identify various key factors in cases of this sort, most notably: (1) the lack of independent advice; (2) what would be called the ‘substantive’ unfairness of the transaction;57 and (3) the fact that at the relevant time the bargaining power of the party concerned was impaired in some way, in particular by what Lord Denning refers to as ‘undue influences or pressures’ brought to bear by or for the benefit of the other. This brings us on to a more fundamental problem, namely the rationale of the undue influence doctrine and the other related doctrines we have been considering. In other words, what is undue influence for?
Given the importance of the doctrine of undue influence, there is a surprising lack of consensus among the standard texts as to the precise rationale of the doctrine. One textbook draws a threefold distinction between misrepresentation (one party misleading the other), duress (threats by one party to the other) and undue influence (one party improperly taking advantage of the other).58 Another classifies undue influence, along with duress and the doctrine of unconscionable bargain, as an instance of improper pressure.59 Yet another speaks of these doctrines as involving improper conduct by one party, the vulnerability of the other, or a combination of the two.60 In the same way the well-known twentieth-century contract scholar Patrick Atiyah framed the relevant law in terms of two duties, one being the duty to refrain from duress and undue influence, and the other the duty not to abuse a fiduciary position.61 However another commentator, David Tiplady, saw three principles at work, all involving some element of deprivation of choice, the first being the abuse of confidentiality, the second the subversion of civic or moral duty for reasons of private advantage, and the third the abuse of monopoly power.62 Despite these variations of emphasis a pattern can be discerned, in that some of these rationales focus on the need to protect the weaker party, while others are more concerned with the need to prevent wrongdoing by the stronger.63
The essence of the first approach, which is strongly associated with the late Peter Birks, has been described as ‘claimant-sided’;64 his or her consent, if not actually negated by the circumstances of the transaction,65 is nevertheless excessively impaired.66 Whereas doctrines such as duress and unconscionable bargains are said to focus on the wrongful conduct of the stronger party in attempting to enforce or at least retain the benefit of the relevant transaction in circumstances where it is not consistent with equity and good conscience to do so, the essence of undue influence, it is argued, is the quality of the consent or assent of the weaker party.67 This view gains support from a number of factors, most notably the absence of any requirement that the claimant prove bad faith or unconscionable conduct by the party seeking to uphold the transaction,68 and the principle that a presumption of undue influence can be rebutted by showing that the claimant entered into the transaction after ‘full, free and informed thought’.69 On this analysis cases of so-called ‘actual’ undue influence are shunted off into a separate category, while what remains is seen as akin to innocent misrepresentation, which can be a ground for setting a contract aside without necessarily providing any right of action on the part of the claimant.70
The second approach, by contrast, focuses on the conduct of the stronger party; in the words of an Australian judge, the law looks at the matter from the point of view of the person seeking to enforce the contract, and enquires whether, having regard to all the circumstances, it is consistent with equity and good conscience that he should be allowed to enforce it.71 This approach, which is followed by Rick Bigwood and others, recognises the common historical roots of undue influence and unconscionability, and is reflected in the frequent reference in the cases to misconduct on the part of the stronger party.72 Though this approach does not deny the issue of impaired consent, it sees it as no more than the context in which the exploitation takes place;73 indeed, Bigwood argues that most if not all involuntary agreements, at least at first blush, involve objectionable forms of advantage-taking or exploitation.74 In this context even where the stronger party was blameless at the time of the relevant transaction, he or she may still be guilty of unconscionable conduct in seeking to enforce it in the circumstances that now exist.
A radically different approach is taken by Mindy Chen-Wishart, who seeks to locate and explain undue influence in the context of what is termed ‘relational autonomy’.75 In this connection she points out that while the law quite correctly promotes and pursues the ideals of personal freedom and autonomy,76 such autonomy is traditionally seen in unduly atomistic and individualistic terms.77 Rather, the law should seek to recognise that what enables people to be autonomous is not isolation but relationships with parents, teachers, friends and loved ones who provide support and guidance.78 In this context, striving for connection with others is not inimical to autonomy; on the contrary, it is an essential prerequisite. However, such connections inevitably carry the risk of exploitation; unprotected commitment can be even more dangerous than unprotected sex.79 So how can such protection be provided? It is here that the doctrine of undue influence comes in to play. Drawing on theorists such as Stewart Macaulay,80 Sir Herbert Hart81 and Joseph Raz,82 the author then seeks to explain the doctrine in terms of the law’s justifiable response to ‘autonomy harms’ in three distinct senses, the first being harm to autonomy-enhancing relationships of influence such as marriage, romance, family, care and friendship,83 the second being harm to those legal institutions (contractual or otherwise) which support voluntary transfers,84 and the third being harm to the claimant’s personal autonomy when he or she makes a transaction that seriously jeopardises his or her chances of leading an autonomous life.85 Though to a certain extent this approach incorporates insights from both of the previous two, it differs from them in its relational focus.86 In this context, it is interesting to see that the author, while not writing in the law and emotion tradition, draws at one point on the insights of psychology and other disciplines.87 It is to these insights that we can now turn.
So much for the law; what of the emotional dynamics? In this section we shall outline five issues; (1) the nature of an emotion; (2) the relationship between emotion and reason; (3) the relationship between emotion and the will; (4) the emotions involved in undue influence; and (5) the way in which these map on to the traditional structure of undue influence law.
The concept of an emotion is one that is notoriously difficult to define;88 indeed, it has been argued that the task is an impossible one owing to the heterogeneous nature of emotion.89 Be that as it may, there are three key points worth noting in this context. The first is that whatever emotion is, it is certainly not to be equated with mere feeling or affect.90 One key aspect that distinguishes emotion from feeling is the presence of ‘intentionality’;91 whereas a feeling is no more than a feeling, an emotion is ‘about’ something92—or in the words of Robert C Solomon, ‘a complex awareness of one’s engagements in the world and one’s tendencies to act on it’.93 The second is the complex and multidimensional nature of emotion, including those of temporal duration,94 intensity95 and complexity.96 Last but not least, emotions do not exist in a vacuum, but can be seen to serve a purpose; in particular, they are said to help the individual maintain significant relationships with his or her environment, most notably the social environment.97 Not for nothing have emotions been described as ‘our fundamental mediators between inner and outer worlds’.98
The traditional approach of the law has been to see emotion as an enemy of reason,99 and this is reflected in the history of philosophy.100 Thus, Plato’s image of the emotions as wild horses which had to be kept under control by the charioteer of reason is one well known to all students of emotion, and the same theme can be seen in the philosophy of the Stoics and in the later writings of Spinoza and others.101 In the words of the pioneering educational psychologist Lewis Terman, ‘an individual is intelligent in proportion as he is able to carry on abstract thinking’.102
However, to others the divide between emotion and reason is not as watertight as some would suggest. In particular, much emphasis has been placed in recent years on the crucial role of cognition in the context of emotion, and it has been pointed out that the processes of appraisal and evaluation apply no less in the emotional sphere than they do in that of the rational.103 Someone suddenly threatens me with a knife and I freeze in terror. Why do I do so? Because I perceive the threat, evaluate it as real and react accordingly. The fact that this, as we shall see, may happen instinctively rather than as a result of rational deliberation is neither here nor there. Needless to say, the relationship between cognition and emotion is not as simple as this suggests; it is a major topic in its own right,104 with a vast body of literature to its credit.105 However, it does offer us this key insight: in the words of William Lyons, it suggests that emotions are motives, and that emotional behaviour may sometimes be both rational and appropriate.106 The importance of this in the context of undue influence is clear to see.
One of the earliest cases on the topic of undue influence is Huguenin v Baseley,107 where it was said that the law was concerned not only with the question whether a party intended to enter into a transaction, but also with the means by which such intention was brought into existence. In the words of Lord Eldon in that case:
If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or ‘undue’ influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person’s free will.108
But what is the relationship between emotions and the will? In some cases emotions seem to bypass the will altogether, as where one instinctively flinches from a perceived attack,109 or as in the case cited by William Miller of the soldier whose legs will not allow him to proceed into battle.110 In other cases the will is not completely sidelined, but even here emotions can, in the words of Nico Frijda,111 serve as ‘action tendencies’ which predispose a person to behave in one way rather than another, as where someone in a bad mood will tend to quarrel with others on the slightest provocation, or where someone who is nervous will tend to flee from a threatening situation. All in all, it has been said that emotion can make us ready to take certain courses, and that the greater the readiness the more likely we are to act in a certain way without a conscious exercise of will.112 Again, the relevance of this to undue influence is clear to see.