1. Overview of Undue Influence
2. Three Variables of Undue Influence

Undue influence is when the free will and judgment of an individual is tampered with through persuasion using devices such as trickery, insinuations, deception, and flattery.  

Overview of Undue Influence

When undue influence is being established, four elements must be present. 

1. It must be shown that the victim was susceptible. Conditions such as a physical disability, physical dependency, and psychological or mental conditions may be used to show susceptibility.

2. The opportunity must exist for undue influence to take place. Undue influence has occurred between:

  • Parent and child
  • Husband and wife
  • Trustee and beneficiary
  • Attorney and client
  • Pastor and parishioner
  • Doctor and patient
  • Administrator and legatee
  • Guardian and ward
  • Fiance and fiancee

3. Evidence must be presented showing that the defendant exercised undue influence over the victim. A defendant who is aggressive in isolating a person from having a relationship with others or discouraging someone from speaking to others for advice may be viewed as exercising undue influence. 

4. Records must disclose a suspicious or otherwise unnatural transaction. An example would be changes made to a last will and testament by a family member of a person diagnosed with a terminal illness where the family member would stand to benefit from the modification. Courts also know that undue influence may be used by those who are vindictive and use the doctrine to invalidate a legal transaction made strictly for personal gain.

Proving undue influence requires one party to show that another party to the contract has weaknesses making that person susceptible to persuasion and that the person doing the persuading is close to the victim, making them more susceptible. 

Undue Influence is a concern in situations when trusts, wills, deeds, and those with significant financial assets are involved, especially for the elderly or frail individuals and those who are debilitated. Persuasion involved with undue influence most often takes place in locations where no witnesses are available to make observations.

Other situations where undue influence is often present include:

  • Domestic violence
  • Hostage situations
  • Telemarketing calls
  • Cult meetings
  • When a person is held as a prisoner of war
  • The committing of white collar crimes

Undue influence is similar but not the same as duress. When duress is claimed, it is because there has been an intentional use of force or a threat of force to coerce another person into an unfair situation. Examples of duress include extortion, blackmail, and bad faith threats.

Three Variables of Undue Influence

The three variables of undue influence are predisposing factors, vulnerability enhancers, and execution variables. 

When these factors are present is when the likelihood of potential undue influence will increase. There are many reasons why an individual may become successfully manipulated, such as mourning the death of a loved one, suffering deep depression, needing lots of attention, experiencing anxiety, depending on other people for physical assistance, and suffering from a medical condition. In each of these situations, the individuals are vulnerable to exploitation and may be maneuvered into performing acts they would not otherwise do.

Several types of individuals exist who are adept at taking advantage of vulnerable individuals. These include the con artist, the psychologically damaged person, the perpetrator, and the devious person. 

Con Artist

This person is aware of potential monetary situations for someone and strives to divert the funds to themselves.

Psychological

This person seeks individual gratification for themselves through the manipulation of others.

Perpetrator

This person does not start out with bad intentions but over time comes to realize they can exploit another individual for their own gain. The temptation to do so is too hard for them to resist.

Devious

Devious people most often find it a relatively easy task to increase the dependency level of someone who is vulnerable.

In the event that a case of undue influence is brought before the court, preparation requires a deep understanding of psychology along with proper investigation and documentation. When the three variables of psychological "stages" that resulted in undue influence are presented along with illustrations pertaining to the case, each plays an integral role to successful undue influence litigation and makes it easier for a judge or a jury to understand what has transpired. 

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