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Friday, January 16, 2015

Undue influence often gets confused with duress.  While both concepts may result in making an agreement, Trust, or Will, unenforceable, the concepts are very different.

Duress is focused on conduct at the time of the execution of an agreement.  It is forceful wrongful conduct apparent from the immediate circumstances surrounding the execution of a document.  Undue influence is subtle, is not likely physical present at the time of the signing of a document, and usually cannot be identified without examining the totality of the circumstance leading up and following the execution of a document.   

Idaho Civil Jury Instruction on Duress reads as follows:

Duress consists of oppressive, coercive or wrongful acts or conduct on the part of one party towards another that was intended to overcome the other party’s free choice of decision to enter into the contract.  The party oppressed must be overwhelmed by such conduct, or must believe there is no means of relief or other alternative to submission.

To be voidable on the grounds of duress, an agreement must not only be obtained by means of pressure brought to bear, but the agreement itself must be unjust, unconscionable, or illegal; the defense of duress cannot be predicated upon demands which are lawful, or the threat to do that which the demanding party has a legal right to do.  Liebelt v. Liebelt, 118 Idaho 845, 848, 801 P.2d 52, 55 (Ct. App. 1990).  Generally, the demand by one party must be wrongful or unlawful, and the other party must have no means of immediate relief from the actual or threatened duress other than by compliance with the demand. Id.

In contrast, in order to show undue influence “it is not necessary to prove circumstances of either actual domination or coercion; that the only positive and affirmative proof required is of facts and circumstances from which undue influence may be reasonably inferred… .”  In re Lunders’ Estate, 74 Idaho 448, 454, 263 P.2d 1002, 1006 (1953) (citing In re Estate of RANDALL, 60 Idaho 419, 421, 93 P.2d 1, 1 (1939).  In Gmeiner v. Yacte, the Court described a large number of factors that must be considered when determining undue influence:

Among the factors taken into consideration in determining the existence of undue influence are the age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction, the providence or improvidence of the gift or transaction, delay in making it known, consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth, failure to provide for his own family in the case of a transfer to a stranger, or failure to provide for all of his children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties.

Gmeiner v. Yacte, 100 Idaho 1, 7, 592 P.2d 57, 63 (1979) citing 25 Am.Jur.2d Duress and Undue Influence § 36 at 397 (1966).  A result is suspicious if it appears “unnatural, unjust or irrational.”  A property disposition which departs from the natural and expected is said to raise a “red flag of warning,” and to cause the court to scrutinize the entire transaction closely.  Gmeiner, 100 Idaho at 7, 592 P.2d at 63(internal citations omitted).

Posted by eswartz at 1/17/2015 12:23:00 AM
Sunday, March 2, 2014

You want what yours and you want it now.  We all do.  

When it comes to real property, you may be getting more, or less than you bargained for - depending on what sellers and buyers agreed upon.  In Idaho, it is important to have a property lines surveyed to ascertain the correct boundary lines before undertaking any project involving boundaries of real property.  Assuming to know where the boundaries lie could result in one party losing some property and another gaining some property.  In Idaho, if two adjacent landowners agree on the boundary line between their property, that may become the permanent boundary - even if it is not the actual property line.   Even if the landowners do not know where the actual property line is located, and guess, it may constitute a binding agreement for the actual property boundary. 

The mutually agreed boundary may become the permanent for all future purchasers.  A simple survey could easily ensure that the boundary line is correct.  

If you are buying property, hire a surveyor, first.  If you have a dispute about your property lines, hire an attorney, first, and a surveyor, maybe, next.     

 

 

Posted by eswartz at 3/3/2014 12:24:00 AM
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