Undue Influence

Any improper constraint, machination or urgency of persuasion whereby the will of a person is overpowered, and he is induced to act otherwise than he would have done. It has been said to imply more subtle influence than "duress" (see Story, Eq. Jur. § 239), but has been held to include threats and vio< lence, in which use it is S3monymous with "duress" (33 N. J. Eq. 494). As used in respect to wills, it includes duress.

The use by one, in whom a confidence is reposed by another who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage of his weakness of mind, or of his necessities or distress; Dolliver v. Dolliver, 94 Oal. 642, 30 Pac. 4; or to constrain him to do that which he would not have done without the exercise of such control. Bennett v. Bennett, 50 N. J. Eq. 439, 26 Atl. 573. That influence which compels one to do that which is against his will from fear, the desire of peace, or some feeling which is tantamount to force or fear. Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235; Frush v. Green, 86 Md. 494, 39 Atl. 863. That which compels the testator to do something against his will, from fear, the desire of peace or some feeling which he is unable to resist. Sheppey v. Stevens, 185 Fed. 147. Influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practised, even though it induce one to make an unequal and unjust distribution of his property, if such disposition is voluntarily made; Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct 705, 34 L. Ed. 84; Marx v. Mc Glynn, 88 N. Y. 357; but the question of the boundary of legitimate influence must be determined by the consideration of the relation between the parties, the character, strength, and condition of each of them, and the application of sound sense to each given case; Elkinton v. Brick, 44 N. J. Eq. 154, 15 Atl. 391, 1 L. It. A. 161; Hartman v. S trickier, 82 Ya. 225; the mental and physical condition of the testator, the provisions of the will itself; Myers v. I-Iauger, 98 Mo. 433, 11 S. W. 974; Kimball v. Cuddy, 137 111. 214, 7 N. E. 589; In re Beach, 23 App. Div. 411, 48 N. Y. Supp. 437; German Savings & Loan Soc. v. De Lashmutt, 83 Fed. 33; and the conduct of the testator after its execution; Boyd v. Boyd, 66 Pa. 283. The questions of capacity and undue influence are closely connected and must be considered together; Tobin v. Jenkins, 29 Ark. 151. On principles of public policy, there is a presumption of undue influence in volunward; 10 L. R. Eq. 405; trustee and cestui que trust; 30 Beav. 39; legal adviser and client; 2 Atk. 25; or between one and bis spiritual adviser; 2 L. C. Eq. 597, n.; s. c. 14 Ves. 273; and so there Is said to be a presumption of undue Influence In case of wills made where these relations exist between the parties; Thompson v. Hawks, 14 Fed. 905; Marx v. Mc Glynn, 88 N. Y. 371; but see In re Bernsee’s Will, 71 Hun 27, 24 N. Y. Supp. 504, where it was held that undue influence could not be presumed from the fact that the beneficiary stood in a confidential relation to the testator. See Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734; Bulger v. Ross, 98 Ala. 267, 12 South. 803. Undue influence will not be established if at the time of making the will the testator’s freedom of will was not overcome; Trost v. Dingier, 118 Pa. 259, 12 Atl. 296, 4 Am. St. Rep. 593; Ormsby v. Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805; but it is held that where it is exercised by any one, even if not a beneficiary, undue influence is ground for setting the will aside; In re Cahill’s Estate, 74 Cal. 52, 15 Pac. 364. See Duress; Fraud; Will.

Any improper or wrongful constraint, machination, or urgency of persuasion, whereby the will of a person is overpowered, and he is induced to do or forbear an act which he would not do, or would do, if left to act freely. Inducing an act by threatening may perhaps come within the terra: use of actual force seems not included; for that, duress (j. u.) is a more proper term.