What are the Etridge guidelines?

What are the Etridge guidelines?

A letter confirming independent advice given to an individual client before they enter into a mortgage securing another party’s debts where they have a non-commercial relationship with the debtor.

Can actual undue influence be rebutted?

The party accused of exercising undue influence may rebut the presumption by demonstrating that the vulnerable party exercised free will in entering the transaction. Generally the undue influence is exercised between a husband and wife.

What is undue influence in mortgages?

What is undue influence? Undue influence in the context of mortgage litigation is an equitable doctrine (a rule or principle of fairness) which may be relied upon as a defence to the enforcement of a mortgage. Similar principles apply in respect of other vitiating circumstances, such as misrepresentation.

Does undue influence strike the right balance?

The relationship predates the contract or gift between them. Undue influence cases reveal the difficulty of striking the right balance between protecting the vulnerable from exploitation, without unduly restricting their freedom to be generous.

What is a Letter of independent legal advice?

This is a Certificate of Independent Legal Advice (ILA), used in a financing transaction where an individual is guaranteeing a loan and the lender requires that such individual obtain independent legal advice as a condition precedent to advancing the funds.

What is the test for undue influence?

The precise test for undue influence again varies by state, but typically the contestant must establish that the undue influencer destroyed the free will of the person executing the will so that the desire of the undue influencer took over for the desires of the victim.

How hard is it to prove undue influence?

It can be difficult to prove undue influence, because it’s impossible to know what someone—who is no longer around to tell you—was thinking when he or she made a will. She did not benefit from the terms of his new will, which left property to close friends instead of to the couple’s estranged daughter.

Is undue influence illegal?

The use of undue influence by one party over another puts the free will of one of the parties entering the contract into question, and therefore leads to the contract being unenforceable and voidable by the victim party.

Is undue influence a crime?

As of today, undue influence constitutes the crime of financial exploitation of an elderly or disabled person under RSMo 570.145. If the amount of money involved is $50 or more, the crime is a felony, and as the amount of money involved increases, so does the penalty. …

Is independent legal advice compulsory?

Independent Legal Advice is a mandatory requirement during a transaction where a party is placed at risk but doesn’t get a direct benefit from.

What is independent certificate?

A document that attests that a person has received legal advice on a proposed contract, from a lawyer not associated with the other contracting party. Lawyers often refer to these documents by their acronym: CILA as in “have your client sign a CILA”. …

What is the burden of proof for undue influence?

The burden of proof is on the claimant to show that undue influence was exerted by the stronger party over the weaker party, and that the latter could not exercise ‘free’ choice when entering the agreement.

What are the Etridge guidelines and why are they important?

Etridge letters use the Etridge Guidelines as written evidence that the solicitor fully understands the transaction and has explained the same to their client. Every Etridge Letter is different as it relates to the individual’s transaction and circumstances.

What happened to the Etridge case?

The Etridge case failed to prove undue influence however what came from the review of these appeals were the guidelines of what banks and solicitors need to do in cases where the could be actual or presumed undue influence in relation to a transaction – these are the Etridge Guidelines.

What is Etridge and when was it delivered?

Etridge was delivered on 11th October 2001 and as a result all conveyancing lawyers should consider carefully their procedures when faced with a transaction where a third party provides security for another person’s borrowing. The risk to solicitors’professional indemnity cover remains acute.

Do you need an Etridge letter for independent legal advice?

Every Etridge Letter is different as it relates to the individual’s transaction and circumstances. If you require an Etridge Letter for Independent Legal Advice then please get in contact. Rated Excellent on Trustpilot with fixed fees and a friendly team to help you.