Understanding Undue Influence
Know the definition of undue influence. Undue influence can occur anytime someone applies improper pressure on another to create a legally binding obligation that is not in the maker’s best interest. The obligation becomes voidable, meaning it can be set aside by a court, if undue influence is proven. Undue influence goes beyond flattery and general pushiness and may include threats and harassment. There are generally four elements (things you have to prove) to make a claim of undue influence. Check your statutes and case law for jurisdictional variations. They are: A weakened or vulnerable state of the victim The opportunity for the other person to take advantage of that state Acts by the other party in taking advantage of the weakened state An unusual or suspicious transaction
Determine the victim was in a weakened state. The law assumes that people of normal mental and physical health can say no. Therefore, if a normal person decides to sell or give away items, the law does not protect them from themselves. A person considered to be in a weakened state is different, however. That person is assumed to be susceptible to the less scrupulous because of their increased vulnerability. Some things that indicate a vulnerability include: Mental or physical illness Recent physical or mental trauma Advanced age
Show the other party had opportunity. There must be an opportunity for the other person to take advantage of the victim’s weakened state. This is usually satisfied if there is a special relationship between the victim and the other person. Many jurisdictions presume that undue influence occurred if certain special relationships exist. Consult an attorney or review your statutes and case law to see which relationships qualify in your jurisdiction. Special relationships can include: Trusted friends Attorney-client Doctor-patient Family members Caregiver-patient
Display that the other party took that opportunity. You also must prove that the other party actually took advantage of the special relationship and the victim’s weakened state. This can be done by showing that the victim likely would not have made the obligation had the other person not exerted the influence. Some examples of this would be: A terminally ill person changing the will at the request of the other person An elderly person making an investment in at the request of the other person An injured person giving away their belongings at the request of the other person
Isolate the unusual or suspicious transaction. Often, even in a confidential or special relationship, the transaction or obligation is for in the best interest of the vulnerable person. Therefore, for undue influence to apply, the transaction must be unusual for that person or situation or suspicious in some other way. Suspect transactions may include: Giving away or selling longterm family heirlooms Changing a will from longterm, cherished relatives to a person only known for a short period of time Investing in highly risky ventures by someone who is normally risk averse
Defeat any defenses. Finally, once you raise the charge of undue influence, the other party has the right to present any defenses. If a defense is successful, the transaction or obligation cannot be set aside and must be honored. The two most prominent defenses are: The victim received qualified, independent advice, such as from a third-party attorney or other professional. This indicates that the victim was fully informed and aware of the nature of the transaction and made a conscious choice to go through with the transaction in spite of the issues. The transaction was fair to the victim. If the transaction was fair to the victim, even if it is beneficial to the other person, then the other person is not seen as having been the result of unfair advantage.
Gathering Evidence of Undue Influence
Read the Rules of Evidence. To bring a claim of undue influence to a court, you must present evidence of the elements. To present evidence, you must know what your jurisdiction does and does not allow to be presented into evidence. Your rules of evidence will tell you: The types of documents or other items that will be allowed into evidence Things that must be shown about the piece of evidence before admitting it into court Different techniques that can or must be used in questioning different types of witnesses
Gather physical evidence. Documents and physical things are usually very persuasive to judges and juries. If you can show physical evidence of the elements, a judge or jury are more likely to rule in your favor. Some physical evidence that may apply to your situation include: Prior wills that had been properly executed Radiological study views with the proper medical testimony to explain them Photographs
Locate potential witnesses. Witness testimony is a form of evidence. If the judge or jury believes your witness, it can be very persuasive. Witnesses must testify only to what they have personally experienced with their own senses, not what someone else told them happened. Also, witnesses will be necessary for introducing most of the physical evidence. Some common witnesses include: A medical or mental health specialist to discuss the victim’s capabilities A person who was present when threats were made A person who took a photograph
Incorporating Undue Influence Into Your Case
Consider hiring an attorney. Undue influence is available for use in a variety of settings, though it is most often used in wills and contracts. Because other aspects of the underlying case type will impact your case and claims of undue influence, you should contact an attorney for assistance. Further, undue influence rarely occurs on its own. There are likely other issues that must be handled in the same case. An attorney licensed to practice in your state and experienced with your underlying issues can assist you with all of these.
Determine your legal posture. Your legal posture is whether you are have been sued (defendant) or are suing (plaintiff). Undue influence can be used either in an offensive or a defensive position. If you are suing to void a contract or contest a will, you will plead undue influence in your petition, which is an offensive maneuver. If you are being sued on a contract that you want to avoid, you will plead undue influence in your answer, which is a defensive maneuver.
Plead the offensive posture. In many states, the civil procedural rules require that undue influence be pled with specificity. This means that you must give details of how the undue influence occurred in your petition. To plead with specificity, you must provide: Details of the type of vulnerability experienced by the victim Details surrounding the special relationship between the victim and the other party The specific acts done by the other party that took advantage of that special relationship and vulnerable status of the victim Particular aspects of the transaction that make it unusual or suspect
Plead the defensive posture. In most jurisdictions, undue influence is considered an affirmative defense. This means that it must be pled in the defendant’s answer to the petition and cannot be raised later if it is not in the answer. To plead the affirmative defense, you must: Admit or deny each allegation in the petition Open a heading for affirmative defenses, separating the defenses by number if you have more than one Plead the undue influence with specificity (as above in the offensive posture) if your jurisdiction requires it.
Manage your case as appropriate. The underlying case you are in and whether you are the plaintiff or defendant will create different steps you will need to take for the remainder of your case. You will incorporate obtaining and presenting your unjust enrichment issues as appropriate . Some things that will be common to anyone, however, are: Mediation/settlement conferences: Many courts encourage or require certain cases to attempt settlement prior to trial. If you go to mediation, a neutral third person will try to help you reach this settlement. If you use a settlement conference, this attempt is usually just made by attorneys and parties. What is said in mediation or settlement usually cannot be used at trial. Motions for summary judgment: This is where either the plaintiff or defendant attempts to convince the judge that there are no facts in dispute, and the judge only needs to rule on the legal issues. Discovery: In discovery, the parties are able to gain access to documents and potential testimonies that the other side either has or intends to use at trial. This can be by questions to parties or other potential witnesses, requests for production of documents and things, and/or requests for the other party to admit certain facts. Trial: Trial is the formal process of presenting your case to the judge or jury so a ruling can be given. If your case goes to trial, it will likely proceed as follows: Petitioner’s opening statements, defendant’s opening statements, petitioner’s presentation of proofs, defendant’s presentation of proofs, petitioner’s closing argument, defendant’s closing argument, petitioner’s rebuttal argument, ruling by judge or verdict by jury.
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