Undue influence and the remedial constructive trust

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Constructive trusteeship provides a useful means for courts to recognise a claimant’s beneficial interest in property of which they have been unconscientiously deprived. Traditionally this form of equitable relief has been limited to claims involving deliberate and active wrongdoing by a defendant. This article examines the availability of the remedial constructive trust in undue influence cases in which the defendant has not been guilty of blameworthy conduct but where it may nonetheless be unconscientious to deprive the plaintiff of property transferred pursuant to the impugned transaction. In ascertaining the appropriate remedial response to undue influence and thereby circumscribing the bounds of the remedial constructive trust, courts should be conscious of the competing interests of the parties and, in many cases, third parties, the need for security of property rights, certainty and predictability, respect for doctrine as well as equity’s traditional role of providing relief from unconscionability and the unjust deprivation of property. This is neither a minor nor a simple task but it is a very important one. It is argued in this article that, in carrying out this task, it is time for the courts to articulate common underlying principles governing the recognition of the remedial constructive trust.
Original languageEnglish
Pages (from-to)143-163
JournalJournal of Equity
Issue number2
Publication statusPublished - 2008


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