Don’t give it away for a song; Undue Influence in lifetime transfers
The recently reported case of Moursi v Doherty demonstrates the vulnerability of an elderly person living alone to financial abuse from an unscrupulous predator. The victim in this case, Ann Gurney died in 2017 and the case was brought on behalf of her estate by her daughter.
Mrs Gurney, 78 was a widow living in her mortgage free property, who met the defendant, who was then 33, when he did some gardening work for her. A close relationship developed and she seems to have been under the impression that they would marry – although the defendant denied that there was a romantic or sexual relationship.
When she was 80 years old, Mrs Gurney transferred her property to the defendant for £70,000 at a time when it was worth £275,000. She remained living in the property until her death some 3 years later.
Although Mrs Gurney had been diagnosed with dementia it appears that at the time of the transfer, she did have the mental capacity to make decisions. But expert evidence obtained by her daughter proved that she was highly vulnerable. The solicitors who dealt with the transaction also acted for the defendant. The explanation given to the solicitors for the sale being at an undervalue was that she had ‘financial difficulties’ – which wasn’t true – and that she and the defendant had known each other for 10 years and were in love. Mrs Gurney had also obtained a letter from her GP to record that she was in a ‘sound state of mind’. The information provided to the GP was different to the information provided to the solicitor and was equally incorrect.
Mrs Gurney was sadly unaware that the defendant had criminal convictions for assault and fraud. He had also previously purchased a property at a significant undervalue from another lady who suffered from early onset dementia.
A small blessing may be that Mrs Gurney passed away without being aware that she had been financially abused.
The case brought by her daughter was on the basis of “presumed undue influence”; this is a very useful legal argument where it can be established that there is (a) a relationship of trust and confidence and (b) a transaction that calls for an explanation. If those elements can be proved then the burden will pass to the defendant to prove that the transaction was in fact entered into with full and informed consent. He was unable to do this at an early stage of the proceedings and the daughter won her case.
The facts of this case are relatively unusual as undue influence in relation to the transfer of property is more often seen in relation to family members. But this form of financial abuse, alongside predatory marriage is likely to continue as high property prices make elderly home owners attractive victims for predators.
Sadly, those who have dementia or reduced cognitive function are at high risk of being victims of financial abuse, as well as those who are in poor health with low levels of social support. Other social risk factors include individuals who:
- are having family problems,
- are dependant on the abuser
- are single or widowed.
Women are far more likely to be victims of financial abuse than men and those from a minority race or culture, or who speak different languages can also be at a higher risk.
Often the reason for a transfer of property is a concern about care home fees; there are other options and considerable care should be taken before giving away your most significant asset to anyone.
If you require legal help or advice, get in touch on 0800 8 60 62 65.