Grounds on which the release of a charge may be set aside

[JohnSurrey]

My parents helped me buy a property by way of a Deed of Trust.

They registered a charge on my property at the land registry and I wouldn't have been able to sell it without their consent etc.

About 10 years ago they told me they never wanted the money back but neither of us did anything to remove the charge.

About 3 years ago when my mother was dying I arranged for the charge to be removed because I didn't trust my father:


My solicitor wrote to them enclosing a Statement of Truth for them to sign.

They both signed the Statement of Truth and it was witnessed by an independent person.

They took legal advice from their own solicitors as my solicitor had advised them to in his letter.

They then advised their own solicitors to confirm to mine in writing that they had taken advice and were happy for the charge to be removed.

My solicitor then arranged for the papers to be filed at the Land Registry and for the charge to be removed.


My jealous sibling is now threatening to have the release of the Deed of Trust set aside as he believes I exerted undue influence or something like that over my parents when my mother was dying.

My questions are:

1. Does he have a case?
2. If he decides to go through with it - which court and how easy would it be to defend it?
3. Is he likely to succeed or have it thrown out given the paper trail of evidence that I have?
4. Anything else I should know?

[Amethyst]

Re: Grounds on which the release of a charge may be set aside

Is your father still alive? and is he aware of the situation with your brother/sister?

What does your brother/sister want from this?

It does sound as though you did everything correctly and your parents took legal advice at the time before agreeing with the removal of the charge. If your paperwork all adds up and there is the evidence of your parents taking independent legal advice (the letter from their solicitors to yours) then there isn't a lot he can do IMO.

[JohnSurrey]

Re: Grounds on which the release of a charge may be set aside

Thanks, what about if my father, who is still alive, were to join in and testify that I held a gun to his head or something ?

[Amethyst]

Re: Grounds on which the release of a charge may be set aside

Blimey you really don't trust him do you. Your father may try to claim undue influence (by your mother) if he is in agreement with your sibling.

However there would be evidence taken from the solicitors where your parents took advice.

[Amethyst]

Re: Grounds on which the release of a charge may be set aside

There a useful article ( http://www.insitelawmagazine.com/ch16duress.htm ) with descriptions of duress and undue influence including RBS/Etridge ( http://www.bailii.org/uk/cases/UKHL/2001/44.html )

It's likely to be very costly if the case went to court and your sibling went on to lose.

How much is the property in question worth, and how much was the charge for?

If the case is brought and the charge was of significant value then it would be wise to engage a solicitor.

Independent advice
Proof that the complainant received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a complainant a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case.

[JohnSurrey]

Re: Grounds on which the release of a charge may be set aside

Thanks for that...

Am I right in thinking that I could sell the property and buy something else so as to get rid of the problem altogether?

In any case, I think they'd find it extremely difficult to make it stick given the evidence there is (there are some text messages and emails too) and the fact that the presumption of undue influence works - father to son - not the other way around.

Further, the charges were removed for all children not just me - my sibling's previous wife however had, under a divorce settlement, repaid in cash the value of the amount advanced to my brother - which is why he's getting so upety about it all.

[Amethyst]

Re: Grounds on which the release of a charge may be set aside

Other than this issue how is your relationship with your brother?

So your parents helped each child (how many?) buy a house by paying the same sort of amount? and holding a charge on the property. When your mother became ill they discharged all charges on all the properties except for your brother as his property had already been sold (or transfered to his ex wife on payment of the charge to your parents) and the charge discharged that way.

He feels that he should have had the money to the value of the charge instead of your parents as yourself and your other sibling/s discharged the charges without any repayment.

That about right? Is your brother claiming the same (undue influence etc) about your other sibling/s and their charges ?

I can kind of see his view although if there had have been no charge over the property it may be that his ex wife would have received the house in the divorce settlement without any payment to your brother, thus his situation would be exactly the same. Had he not have divorced he may have had his charge discharged also so feels he has been treated unfairly by your parents (maybe feels they should have given him the money received from his ex-wife to discharge the charge?) and blames you?

Do you have much equity in your house ? (in that you could come to an agreement with your other siblings in evening things up between you to save your relationship deteriorating) How does your father feel about it ?


Regarding undue influence between child and parent there are a couple of cases but both involve power of attorney,

Violet Hackett v (1) Crown Prosecution Service (2) David Hackett [2011] EWHC 1170 (Admin)
Power of attorney inevitably demonstrating relation of influence, in the circumstances. The presumption of undue influence was not rebutted.

De Wind v Wedge [2008] EWHC 514 (Ch)
The mother's desire to assist her son at her daughter's expense was free and genuine. His attorneyship did not increase the likelihood of undue influence.

Between Wife and Husband (if your sibling argues your mother influenced your father), the wife (your mother) did not benefit from any 'undue influence' so I'm not sure it could be deemed as such.

If your brother does decide to take this to court then it would be quite devastating for your family and likely very expensive. I'm not sure if your suggestion of selling up would solve anything unless you were intending to give something to your sibling?


Sorry for a bit of a ramble, just some ideas and thoughts. I'm not sure if I have understood the situation correctly from your posting.