Re Coomber. Coomber v Coomber
| Jurisdiction | England & Wales |
| Date | 1911 |
| Year | 1911 |
| Court | Court of Appeal |
Fiduciary Relation - Gift - Influence - Nature of Relation which will make Court set aside Gift - Dual Relation - Son managing Business for Mother - Gift induced by Natural Affection - Independent Advice.
It is not every fiduciary relation between a donor and donee which will induce a Court of Equity to set aside a gift, but only those special relations which from their nature raise a presumption of undue influence. It is sufficient if an independent adviser sees that the donor understands what he is doing and intends to do it; he need not advise him to do it or not to do it.
ARTHUR BENJAMIN COOMBER, who died on July 14, 1905, was at the date of his death entitled to a long lease of certain ale stores at which he carried on business as a retailer of beer. His son Harry Coomber had for many years assisted him in the business and for some years before his death acted as sole manager of the business. By his will A. B. Coomber left all his property to his wife, who survived him, absolutely. There was evidence, which the Court believed, that A. B. Coomber had expressed to his wife a wish that Harry Coomber should have the business. Until the date of the assignment hereinafter mentioned Harry Coomber continued to manage the business on behalf of his mother and also collected for her the rents of certain houses which had belonged to her husband.
On September 28, 1905, Mrs. Coomber executed an absolute assignment of the lease of the said ale stores and the goodwill of the business to Harry Coomber, and on the next day the licence for selling beer on the premises was assigned to him. There was no consideration for the assignment expressed in the deed. There was evidence that Harry Coomber had agreed to make his mother an allowance and had paid it up to her death; but the transaction was treated by the Court of Appeal as an absolute free gift. The assignment was prepared by a solicitor, who had acted for Mrs. Coomber in relation to her husband's estate, upon instructions given by her in an interview at which they were alone. He explained the draft assignment and saw that Mrs. Coomber knew and understood what she was doing, but he was not asked to give and did not give any advice as to whether she should do it or not.
Mrs. Coomber died on July 23, 1906, leaving three children, namely, the plaintiff, who was her eldest son, Harry Coomber, and a daughter.
This action was brought by the plaintiff against Harry Coomber and his sister claiming a declaration that Harry Coomber was a trustee of the lease, business, and licence for the persons interested in Mrs. Coomber's residuary estate. The chief ground of the action was that Harry Coomber was in a fiduciary relation to his mother, and a gift from her to him could not be valid unless he proved that she had independent advice.
Neville J. dismissed the action on the ground that the gift must be attributed to Mrs. Coomber's affection for her son and not to any fiduciary relation between them.
The plaintiff appealed.
Peterson, K.C., and Boome, for the appellant. In this case there was a fiduciary relation between the mother and son in regard to the particular property affected by the gift. Where such a fiduciary or confidential relation exists there is no need to prove undue influence. The Court will assume it, and a donee cannot support a gift unless he proves that there was no undue influence and that the donor had full information and independent advice: Rhodes v. BateF1; Powell v. PowellF2; Wright v. Carter.F3
The case comes within the second group mentioned by Lindley L.J. in Allcard v. SkinnerF4, where the existence of a fiduciary relation throws the burden of proof upon the donee.
[BUCKLEY L.J. The rule cannot apply to every case of fiduciary relationship. Have you any case in which it was applied between a landowner and his bailiff?]
In Harris v. TremenheereF5 it was assumed that a bailiff was within the rule. The gift plainly could not stand if Mrs. Coomber were alive and disputed it. The independent advice was not sufficient. Farwell J. (as he then was) in Powell v. PowellF6 laid it down that the adviser must protect the donor against himself, and Neville J. has rightly followed him on this point.
Butcher, K.C., and Cozens-Hardy, for the respondents, were not called upon.
COZENS-HARDY M.R. This is an appeal from the decision of Neville J. declining to...
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NAVIGATING THE MAZE
...Zacharia(1984) 154 CLR 178 at 204–205, cited in Warman International Ltd v Dwyer[1995] 128 ALR 201 at 210. 183 See also Coomber v Coomber[1911] 1 Ch 723 at 728 (on courts interfering and setting aside acts). 184Warman International Ltd v Dwyer(1994–1995) 182 CLR 544 at 559; (1995) 128 ALR 2......
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UNDUE INFLUENCE, UNCONSCIONABILITY AND GOOD FAITH
...197. 25 Credit Lyonnais Bank Nederland NV, The Times, 1 July 1996, citing Powell v Powell[1900] 1 Ch 243 at 246 (Farwell J); cfRe Coomber[1911] 1 Ch 723 at 730 (CA); Inche Noriah v Shaik Allie bin Omar[1927] AC 127 at 135 (PC) which suggest that there is not always a need for independent ad......
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A review of the response of the Courts and NSW Guardianship Tribunal to cases of financial abuse.
...any type of fiduciary or confidential relationship gives rise to the presumption of undue influence has been rejected: In Re Coomber [1911] 1 Ch 723. In that case, a mother assigned to her son a business of which he was the manager. The Court of Appeal forcefully rejected the proposition th......