50 State Undue Influence Project: North Dakota Undue Influence Expert Definitions
In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Thirty-fourth up, North Dakota.
N.D.C.C. § 9-03-11:
Undue influence consists of the following:
In the use, by one in whom a confidence is reposed by another or who holds a real or apparent authority over that person, of such confidence or authority for the purpose of obtaining an unfair advantage over that person;
In taking an unfair advantage of another’s weakness of mind; or
In taking a grossly oppressive and unfair advantage of another’s necessities or distress.
In re: Estate of Stave, 2007, 729 N.W.2d 706 (N.D. 2007):
In a will contest, the Court has defined undue influence as “the substitution of the purpose and intent of one exercising influence for the purpose and intent of the testator.”
To prove undue influence in this context, the will contestant must establish:
A testator subject to undue influence;
The existence of the opportunity to exercise undue influence;
A disposition to exercise undue influence; and
A result that appears to be the effect of undue influence.
For an undue influence claim to be submitted to a jury for trial, the evidence must be sufficient with regard to each essential element of the claim and the evidence must also create more than just a mere suspicion of undue activity.
Erickson v. Olsen, 844 N.W.2d 585 (N.D. 2014):
Whether undue influence occurred generally presents a question of fact.
In cases involving nontestamentary transactions, the Court has defined undue influence as “improper influence exercised over the grantor…in such a way and to such an extent as to destroy his free agency or his voluntary action by substituting for his will the will of another.”
Sulsky v. Horob, 357 N.W.2d 243 (N.D. 1984):
In nontestatmentary cases, the Court has held “a finding of undue influence…requires that three factors be established:
A person who can be influenced;
The fact of improper influence exerted; and
Submission to the overmastering effect of such unlawful conduct.
In re: Estate of Bartelson, 864 N.W.2d 441 (N.D. 2015):
A rebuttable presumption of undue influence applies not only to transactions involving trustees, agents, and attorneys-in-fact, but also to all transactions involving confidential relationships.
N.D.C.C. § 59-18-01.1 Presumption against trustee:
A transaction between a trustee and the trust’s beneficiary during the existence of the trust or while the influence acquired by the trustee remains by which the trustee obtains any advantage from the trust’s beneficiary is presumed to be entered by the trust’s beneficiary without sufficient consideration and under undue influence. This presumption is a rebuttable presumption.
Estate of Zins, 420 N.W.2d 729 (N.D. 1988):
A confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another, and that such relationship is a fact to be established in the same manner and by the same kind of evidence as any other fact is proven.