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.

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)

undue influence

noun absolutism, arbitrary power, coercion, compulsion, conscription, constraint, despotism, dominance, domination, duress, enforcement, high pressure methods, impelling, impressment, inducement, necessitation, predominance, pressure, repression, subjugation
Associated concepts: exertion of undue influence, invalidaaion of a will

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.
References in periodicals archive ?
In a typical undue influence case, both testamentary incapacity and undue influence will be asserted by the will contestant.
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.
Undue influence has been defined as "the use of improper constraint, urging or persuasion to induce a decedent to dispose of her property in a manner that she would not have done if left to act freely," which can be very hard to detect.
2) Following a three-day trial, at which a recognized psychiatrist offered his forensic opinion that Fred was thought disordered and psychotic on the date the will was made, the Honorable Jerome Eckrich held that Fred possessed testamentary capacity and that his will was not the product of undue influence.
5) At that point, there is a presumption that the testator, the grantor of a deed, and the contracting party, respectively, were competent; (6) the burden of proving incompetence or undue influence, or both, is on the contestant.
More specifically, reference is made to Article 12(4) of the CRPD, which contemplates a number of safeguards to ensure that 'measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free from conflict of interest and undue influence, are proportional .
Undue influence by those in the fringes over those in the mainstream has to stop to prevent this.
fuzzy definition of undue influence, which is the most common basis for
The stockholder rights plan is for a two year period and is designed to protect against partial tender offers and other coercive tactics intended to gain control or undue influence of China Biologic, without offering a fair and adequate price and terms to the company's stockholders.
This power would also allow social services to decide if a person is making decisions freely, without undue influence from an abuser.
The will was challenged on grounds of undue influence by the attorney-beneficiary.
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.