A relatively rare case involving “facility and circumvention” and “undue influence”.

Background.

“In this action Alex, suing in his capacity as executor nominate under the will, seeks reduction of the two dispositions and the deed of gift on the ground that they were impetrated by means of facility and circumvention and also by undue influence exercised over Mrs Matossian by Berj and Richard.  The broad proposition advanced on his behalf is that by virtue of the three transactions of 25 April 2007 Mrs Matossian gave away basically all her assets in contradiction of a contemporaneous will, to Berj and Richard for no return except a capital gains tax liability at a time when she was clearly seriously ill and without the assistance of independent advice.”

The Court of Session ruled that that the two sons had used their “dominant influence” and the trust that arose from the relationship to gain a “material benefit” to the prejudice of their late mother.

“In light of these findings I conclude that when Mrs Matossian signed the three deeds on 25 April 2007 she was subject to facility and circumvention as well as undue influence at the instance of both Berj and Richard.  The circumstances of the signing of the three deeds are eloquent of both facility and circumvention and undue influence, the requirements of each of which I have set out in full above.  I am satisfied that on 25 April 2007 Mrs Matossian was suffering from weakness of mind, that acts of circumvention by Berj and Richard impetrated the execution of the three deeds and that she suffered lesion as a result.  I infer circumvention from the whole circumstances of the execution of the deeds, as narrated above.  Lesion consists in her having divested herself of her entire heritable estate for no consideration.  I reject any evidence from Richard, Berj and Mr Couston to the contrary.  So far as undue influence is concerned, I am satisfied that all the requirements, as set out above, have been established by the evidence.  There was a relationship that created a dominant influence (sons and mother), confidence and trust arose from that relationship, a material benefit was given to the prejudice of the grantor and there was an absence of independent advice and assistance.”