Docstoc

KII-Avoidance-Kase_v_French

Document Sample
KII-Avoidance-Kase_v_French Powered By Docstoc
					79b2e7be-82f5-409c-b3ba-37e57ec25899.doc

546

Kase v. French, Supreme Court of SD, 1982 Did ∆s exercise undue influence on and violate the confidence of Mrs. McWilliams? Issue Reasoning
A confidential relationship existed at the time of the sale of the property. The ∆ paid over the appraisal price; let her live with them free; and took care of her as promised – They did not exert undue influence. She was mentally alert; strong willed; and able to take care of herself – described as a stubborn old lady. Merely because She chose not to follow the attorney’s advice does not destroy the importance of having received that advice.

Rule
A confidential relationship is not restricted to any particular association of persons. It exists whenever there is trust and confidence, regardless of its origin. Such a confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise with the other's interest in mind. Confidential relation requires the dominant party to exercise the utmost good faith and to refrain from obtaining any advantage at the expense of the confiding party. If there is evidence of trust and confidence, he BoP is on ∆ to show they didn’t take unfair advantage of their dominant position. The indicia of undue influence are: o a person susceptible to undue influence, o opportunity to exert undue influence and effect wrongful purpose, o disposition to do so for improper purpose, and o result clearly showing effect of undue influence

Facts
∆s regularly delivered groceries to ∏’s aunt, Mrs. McWilliams who was a strong willed 83 yr old. ∆s befriended her and on several occasions promised to take care of her and that she would have money. Mrs. McWilliams trusted and had a confidential relationship with the ∆s. Against the recommendations of her attorney, she sold her house to her which was appraised at $35K at an interest rate of 1% (the going rates in the area at the time were 6-8%)- ∆s agreed to her live with them for 2 yrs rent free. She lived with them for 1.5 yrs but they then put her in a nursing home but ∆ was the person to be contacted in case of emergencies.

Dissent

They were out of take advantage of her – gained her confidence placing themselves in a fiduciary relationship; abused the trust and profited from it. She was old and could not understand all of the representations or actions of the ∆s. ∆ had fiduciary duty to divulge a fair interest rate. Attorney’s advise does not count because her mind was closed and she did not want to listen An intentional, active concealment of a fact of which the other party is known to be ignorant has the same effect as a false statement. Mere non-disclosure does not invalidate the tx unless some previous relationship between the parties imposed an obligation to disclose. Affirmed. They did not take advantage of her and did not exercise undue influence. ∏ (nephew) sued to rescind the sale based on “undue influence” – Trial said: aclid K. But she didn’t take the advise of her attorney; he was just a draftsman of the agreement made between the parties We took care of her as promised; Her attorney advised her and she did not take his advice.

Held Procedure P argues D argues


				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:12
posted:5/16/2009
language:English
pages:1