undue influence

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Undue Influence

A judicially created defense to transactions that have been imposed upon weak and vulnerable persons that allows the transactions to be set aside.

Virtually any act of persuasion that over-comes the free will and judgment of another, including exhortations, importunings, insinuations, flattery, trickery, and deception, may amount to undue influence. Undue influence differs from duress, which consists of the intentional use of force, or threat of force, to coerce another into a grossly unfair transaction. Blackmail, Extortion, bad faith threats of criminal prosecution, and oppressive Abuse of Process are classic examples of duress.

Four elements must be shown to establish undue influence. First, it must be demonstrated that the victim was susceptible to overreaching. Such conditions as mental, psychological, or physical disability or dependency may be used to show susceptibility. Second, there must be an opportunity for exercising undue influence. Typically, this opportunity arises through a confidential relationship. Courts have found opportunity for undue influence in confidential relationships between Husband and Wife, fiancé and fiancée, Parent and Child, trustee and beneficiary, administrator and legatee, Guardian and Ward, attorney and client, doctor and patient, and pastor and parishioner. Third, there must be evidence that the defendant was inclined to exercise undue influence over the victim. Defendants who aggressively initiate a transaction, insulate a relationship from outside supervision, or discourage a weaker party from seeking independent advice may be attempting to exercise undue influence. Fourth, the record must reveal an unnatural or suspicious transaction. Courts are wary, for example, of testators who make abrupt changes in their last will and testament after being diagnosed with a terminal illness or being declared incompetent, especially if the changes are made at the behest of a beneficiary who stands to benefit from the new or revised testamentary disposition.

Nevertheless, courts will examine the facts closely before finding that a transaction has been tainted by undue influence. Mere suspicion, surmise, or conjecture of overreaching is insufficient. The law permits loved ones and confidants to advise and comfort those in need of their support without fear of litigation. Courts are also aware that the doctrine of undue influence can be used as a sword by the vindictive and avaricious who seek to invalidate a perfectly legal transaction for personal gain. When undue influence is found to have altered a transaction, however, courts will make every effort to return the parties to the same position they would have occupied had the overreaching not occurred.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

undue influence

n. the amount of pressure which one uses to force someone to execute a will leaving assets in a particular way, to make a direct gift while alive, or to sign a contract. The key element is that the influence was so great that the testator (will writer), donor (gift giver), or party to the contract had lost the ability to exercise his/her judgment and could not refuse to give in to the pressure. Evidence of such dominance of another's mind may result in invalidation of the will, gift, or contract by a court if the will, gift, or contract is challenged. Participation in preparation of the will, excluding other relatives, being present when the testator and the attorney meet are all evidence of undue pressure, and an imbalance or change in language which greatly favors the person exercising the influence are factors in finding undue influence. Example: Pete Pounder constantly visits his aunt Agnes while she is ill and always urges her to leave her mansion to him instead of to her son. Pounder threatens to stop visiting the old lady, who is very lonely, tells her she is ungrateful for his attention, finally brings over an attorney who does not know Agnes, and is present while she tells the attorney to write a new will in favor of Pounder. (See: will, will contest)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

undue influence

in the law of contract, the doctrine that will render a contract at least voidable if a person is reasonably considered to be in a position of trust (used non-technically) in relation to another person and abuses that trust. This doctrine or a variety of it has allowed courts in the UK to prevent banks exercising mortgage powers against spouses who have been taken advantage of by the customer spouse.
Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
Because a claim of presumed undue influence invariably raises consent issues, I begin my analysis with a review of consent doctrine, specifically the relevance of disclosure, advice and influence.
That's one reason it's important to watch for cases of undue influence as they wend through the courts.
In this article, I focus on the threshold issue of testamentary capacity along with two additional doctrines by which a will can be held invalid once testamentary capacity has been established: insane delusions and undue influence. Situating these doctrines in relation to one another can be helpful in developing an understanding of the precise contours and limits of each legal concept.
His Honour was satisfied that the circumstances surrounding the preparation and execution of the 1999 Will and the March 2000 Codicil were consistent with them having been obtained by undue influence on the part of the Knaggs.
Undue influence by those in the fringes over those in the mainstream has to stop to prevent this.
procured by undue influence, duress, or fraud." (45) This rule,
The will was challenged on grounds of undue influence by the attorney-beneficiary.
A POLICE force's chief constable is being investigated over an allegation that he used "undue influence" in relation to a criminal investigation.
1 year ago THE chief constable of Cleveland Police vehemently denied allegations of job-rigging over an inquiry into accusations that Sean Price used "undue influence" to help a person secure a position within the police force.
Consequently, gift planners must recognize signs that a donor might lack the mental capacity to make a gift and to develop strategies for dealing with donors and their families if issues of capacity or undue influence ever arise.
Candidates for election would fund their own campaigns or be sponsored, giving rise to the possibility of undue influence (some would say corruption) and an inevitability, with so many votes to count on in Liverpool, of a city-centric rather than regional police service.
SALEM - The state Justice Department has given the go-ahead for a statewide real estate professionals association to continue collecting a $75 mandatory assessment from its 14,000 members after withdrawing the department's earlier assertion that the practice is an illegal use of undue influence.