Abstract
The sole function of the law of fiduciary accountability is to control the opportunism that may impair our limited access arrangements. Unfortunately the clarity of that function has faded. Some judges have misconstrued the conceptual boundaries of the regulation. The judicial treatment of what today commonly is described as the doctrine of presumed undue influence powerfully illustrates the deterioration in clarity. Over the course of the past two centuries English courts have slowly been separating the ‘doctrine’ of presumed undue influence from the law of fiduciary accountability. There was no explicit declaration of that separation. Instead, in a blinkered process, judges simply repeatedly cited certain cases to produce what appeared to be a line of authority that differed from conventional fiduciary regulation. That appearance of difference led other judges to devise novel criteria for the application of the supposed doctrine. That raised fresh concerns and accelerated the conceptual disorder.
Published Version
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