An agreement may be set aside if it was not in fact entered into voluntarily by both of the parties. If either party entered into the agreement because of undue influence or physical or emotional duress, it may be set aside.
Undue influence arises in a situation where a confidential relationship exists and one party has such influence over the other party that the other party’s free will is dominated to the benefit of the influencing party. Confidential relationships which may result in undue influence can be such things as the relationship of an elderly parent and an adult child, a physician and patient, an attorney and client, or any other relationship of trust and confidence in which one party exercises a significant amount of control or influence over another. Because of the possibility that a person in such a confidential relationship may dominate the will of another and take unfair advantage of that person, the law presumes that undue influence has occurred if the dominating party obtains any benefit from a contract made with the person alleged to have been unduly influenced. The contract is then voidable and may be set aside unless it can be proven that no such undue influence took place.
Smith, upon reaching the age of 75 and being in ill health, decided to move in with his oldest adult son. He lived with his oldest adult son for several years prior to his death. Upon his death, it was discovered that he deeded all of his property to his oldest son. The younger son contested the deed, stating that his older brother exercised undue influence over their father in getting him to give all of his property to the oldest son. A presumption of undue influence would arise which would have to be overcome by the oldest son. One way to overcome this presumption would be to show that the father consulted a disinterested third party, preferably an attorney, without the older son being present, and was counseled by the third party. This is not absolute proof of the lack of undue influence, but it is a very important element of proof.
Persuasion and argument are not in themselves undue influence. An essential element of undue influence is that the person making the contract does not exercise his free will. Unless there is a confidential relationship, such as that between a parent and child, Courts are most likely to take the attitude that the person who claims to have been dominated was merely persuaded.
An agreement made under duress may be set aside if the duress took the free will of the person seeking to avoid the contract away. In a duress situation, a party enters a contract to avoid a threatened danger. This threat may be a threat of physical harm to person or to the property of someone.
A person makes a contract under duress when there is violence or the threat of violence to the extent that the person is deprived of his free will and makes the contract to avoid harm. The threatened harm may be directed at a relative of the contracting party as well as against the contracting party. If a contract is made under duress, the agreement is voidable.
