How Do I Enforce an Oral Promise To Transfer Land?
Full Question:
Answer:
Undue influence is a term most often used when a Will is contested to refer to outside pressures which negate the free will of the testator (will maker), so that the maker of the will lacks the necessary mental capacity for a valid will. Courts have long recognized undue influence as a basis for setting aside such documents as trusts, deeds, wills and other legal documents.
Undue influence may take the form of isolating the weaker person, promoting dependency, or inducing fear and distrust of others, among other manipulations. Undue influence, like mental capacity, raises the question of whether an individual is acting freely. Duress is usually claimed as a factor in the conclusion that undue influence existed. However, duress is a causative factor, whereas undue influence is a determination that the person lacked the required mental state to legally make a decision due to duress or other factors, and based upon the following elements:
In order to prove undue influence, one would have to demonstrate:
-the existence and exertion of an influence;
-the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and
-the execution of a testament which the testator thereof would not have executed but for such influence.
Typically, courts that make determinations of whether or not undue influence has been exercised. In doing so, they consider a variety of factors, including whether the transaction took place at an appropriate time and in an appropriate setting and whether the older person was pressured into acting quickly or discouraged from seeking advice from others. Courts also consider the relationship between the parties, and the "fairness" of the transaction. Courts proceed on a case by case basis to determine what is and what is not undue influence given a particular fact scenario. The key to the analysis is the relationship of the parties. The courts are much more likely to find undue influence where one party is stronger than the other and where a fiduciary relationship clearly exists as a matter of law or fact.
