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Undue Influence and its Effects on Gifts

If a recipient of the gift has obtained the gift by unduly influencing the donor, the donor or his/her representatives may have the gift cancelled.

Undue influence involves total dominion and control over the mind of another.  Therefore, a gift which is obtained by undue influence is revocable.

In order to establish undue influence, it must be shown that the donor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency, and impel the grantor to act against his or her inclination and free will.[i]

Circumstances commonly considered in determining whether a donor was unduly influenced in the making of a gift include (1) whether the gift was the product of hasty action; (2) whether the gift was concealed from others; (3) whether the person or organization benefited by the gift was active in securing it; (4) whether the gift was consistent or inconsistent with prior declarations and planning of the donor; (5) whether the gift was reasonable rather than unnatural in view of the donor’s circumstances, attitudes, and family; (6) donor’s age, physical condition, and mental health; (7) whether a confidential relationship existed between the donor and the recipient of the gift; (8) whether the donor had independent advice.

The test of undue influence is whether the party exercised his/her own free agency and acted voluntarily by the use of his own reason and judgment, which may be determined from all the surrounding circumstances, including the relation of the parties, the time and manner of making suggestions or giving advice, the motive, if any in making suggestions, and the effect upon the party so acting.[ii]

[i] In re Estate of Erickson, 202 Mich. App. 329.331 (1993)

[ii] Logan v. Logan, 23 Kan App 2d 920 924 (Kan .Ct. App. 1997)

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