Section 25 Force, Coercion, or Overpersuasion

• Library: Remedies 2006

Undue influence, as a ground for rescission or cancellation, is not defined by fixed principles or elements. It is purposefully left unstructured so that courts may do justice and the unscrupulous may not avoid its application. Shafer v. Hatfield, 223 S.W.2d 396, 401 (Mo. 1949); Perkins v. Rantz, 631 S.W.2d 907, 911 (Mo. App. S.D. 1982). Undue influence is a species of constructive fraud, and its application depends on the particular circumstances of the case. Id. Undue influence can be proved by direct evidence or by circumstantial evidence. Steller v. Steller, 401 S.W.2d 473, 477 (Mo. 1966). In fact, the courts recognize that it is usually concealed. Davis v. Pitti, 472 S.W.2d 382, 387 (Mo. 1971). Undue influence can be inferred from the surrounding facts and circumstances, but it still must be proved by clear, cogent, and convincing evidence. Estate of Helmich v. O’Toole, 731 S.W.2d 474, 478 (Mo. App. E.D. 1987).

A common theme requires that the will of the person must have been replaced or substituted by the will of the person exercising the undue influence. In re Estate of Hayes, 658 S.W.2d 956, 959 (Mo. App. S.D. 1983). In the words of many cases, undue influence is “influence which, by force, coercion or overpersuasion destroys the free agency of the grantor to act.” Davis, 472 S.W.2d at 387. Some courts have required the application of an objective standard, in that the compulsion must be sufficient to overcome the will of a person of ordinary firmness. Aurora Bank v. Hamlin, 609 S.W.2d 486, 488 (Mo. App. S.D. 1980). The court in Aurora Bank also required a subjective standard, in that the influence was also required to overcome the will of the particular person in that case. Id. Many courts have examined various factors to determine whether undue influence has been exercised, including the mental and physical condition of the person. Drake v. Greener, 523 S.W.2d 601, 607 (Mo. App. W.D. 1975). Other factors include the susceptibility to the persuasion, Salisbury v. Gardner, 515 S.W.2d 881, 886 (Mo. App. W.D. 1974), the power and opportunity to influence, id., and an unnatural disposition of property, Drake, 523 S.W.2d at 607.

There are certain facts that the courts have found to not be factors. Courts do not require that the influencer be physically...