Document Type
Article
Publication Title
American Journal of Trial Advocacy
Publication Date
2023
Volume
47
First Page
23
Abstract
(Excerpt)
The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced. I argue that the courts’ inquiry into the mind of the influencee to determine whether this person was vulnerable is not a useful construct as an element of the doctrine. This Article addresses three contexts in which assessing one’s vulnerability is problematic: (1) in the contract formation process occurring in the general population (meaning not within a high-control group), such as the signing of an arbitration agreement in Martinez-Gonzalez v. Elkhorn Packing Co.; (2) in disputes resolving whether testamentary bequests went to the rightful beneficiaries of wills; and (3) in contract formation processes occurring in high control groups, such as in the case of D’Onofrio v. Mother of God with Eternal Life. Because the traditional doctrine of undue influence involves the courts’ assessments of the claimant’s4 state of mind, this Article uses the term “vulnerability” to refer to the analysis courts use to determine whether the claimant was free from coercive control.
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Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4839622