Posted: Monday, 23 November 2020 @ 11:01
If you do end up in the Courts and suing an errant attorney there a number of different ways to do this and this will typically be in the Court of Protection or the Chancery Division in the High Court.
A claim in the Court of Protection will only apply if the Donor is still alive. Otherwise you are looking at the Chancery Division.
Some grounds to sue within the Chancery division include:
Set aside on the grounds
of lack of capacity: The test for mental capacity for an inter vivos gift has
been stated in Re Beaney  2 All ER 595 as follows: “the principle is that
the mental capacity required by the law in respect of any instrument is
relative to the particular transaction which is being effected by means of the
instrument, and may be described as the capacity to understand the nature of
that transaction when it is explained."
Breach of fiduciary duty
/ breach of trust: in circumstances where a person has assumed a responsibility
for assisting another with their finances pursuant to a power of attorney or as
a court appointed deputy, the courts have recognised that a fiduciary
Undue influence: Undue
influence is an equitable doctrine which provides that transactions (including
gifts and contracts) may be set aside in circumstances where the transaction
has been procured by conduct, which, whilst falling short of actual fraud,
consists of the exercise of an unfair advantage, typically by a party in a
position of power, influence or trust, over the other party to the transaction.
The rational of the doctrine then is to protect vulnerable parties from
exploitation by people in whom they have trust and confidence.
behaviour: The weakness of one party has to have been exploited by the other in
some morally culpable manner. Overreaching or oppressive result: The resulting
transaction must be not merely hard but overreaching or