Class 2B even if there is no relationship falling within Class 2A if the

Class 2b even if there is no relationship falling

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Class 2B - even if there is no relationship falling within Class 2A , if the complainant proves de facto existence of a relationship under which the complainant generally reposed presumption of undue influence. In Class 2B care therefore, in the absence of evidence disproving undue influence, the complainant will succeed in setting aside the impugned transaction merely by proof that the complainant reposed trust and confidence in the wrongdoer without having to prove that the wrongdoer exerted actual undue influence or otherwise abused such trust and confidence in relation to the particular transaction impugned.
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This list of such special relationships is not a close one and all circumstances of the case have to be considered to determine whether such a relationship exists. The principle applies to every case where influence is acquired and abused, where confidence is reposed and betrayed. To raise a presumption of undue influence against the wrongdoer, it is necessary to prove domination and unconscionableness of the contract. The raising of the presumption absolves the complainant, or that the wrongdoer in relation to the particular transaction impugned. The presumption is raised because it is obvious that the same power which can dominate the will of the weaker party is often also in a position to suppress the evidence which would be required to prove undue influence. Accordingly a modification of the ordinary rules of evidence is necessary to prevent a failure of justice in such cases. s.16(3)(a) provides that where a person, who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that the contract was not induced by undue influence is reversed from the weaker party to the dominant party. While s.16(3)(a) only applies to cases where there is a contract and not where a complainant who wants to set aside gift on the plea of presumed undue influence. However here resort may be had to s.111 EA 1950 as s. 16(3)(b) states that nothing in s.16(3)(a) shall affect s.111 of the EA 1950 . The presumption of undue influence may be rebutted by showing that the transaction was the result of independent will. This may be established even if the complainant did not receive independent legal advice. However, if a weaker party has obtained independent legal advice, then there may be no undue influence. The independent advice must be given by a legal advisor who has knowledge of all relevant facts and who must be competent, honest and acting in the interest of the weaker party. In Inche Noriah v Shaik Allie bin Omar (PC) [1929] , an old illiterate lady executed a deed to transfer all her property to her nephew. She was bought by her nephew to see a lawyer who gave her independent legal advice and acted in good faith but was unaware that she was transferring all her property. The court held that there was undue influence.
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