If you were advising the financial adviser in this problem, what kinds of things would you say he should do, before signing the contract to purchase the house, that would minimize the children's claim of undue influence?

So the second of these phenomenon for undoing a contract, if you will, getting out of a contract, would be undue influence. Undue influence is kind of a strange little thing. I think you will recognize it when you see it.

What is it? It is the taking of an unfair advantage of a person by reason of a dominant position usually based upon a confidential, perhaps a fiduciary, relationship. And it sort of always looks the same way. You've got one person who is a strong-willed individual, who is sort of having his way contractually with a weak-willed, more submissive type individual.

There's also very often a question of fairness in the transaction. It seems as if that dominant party is taking advantage to his benefit in some sort of unfair way with respect to the less dominant position. And there's also usually some lack of outside counsel so that the party has really just been taken advantage of. It just seems wrong.

So I think the best way to explain this is to give you a scenario. And if you find something that looks like this scenario, you've got to be thinking, hey, this may be a problem of undue influence, and what can I do about it. So let's get very practical here.

Let's make believe that what we have here is a woman-- you know, a woman getting on in age who lives in a small town, maybe out in the Midwest somewhere, Iowa. I don't know, Iowa. And she's got two children. She's a widow. But she has two children. And one who lives on the East Coast, one who lives on the West Coast.

But they don't-- they don't visit very often. They don't call very often. They really are not involved in her day to day life. Luckily, she has a fair amount of money and she has a beautiful home, beautiful home in this town. You know, it would be a mansion, a multimillion dollar mansion, here in Washington. But in this little town in Iowa, it's still a very, very nice house.

In any event, luckily for her, there is an investment counselor who lives in this town who has helped her in many ways. Certainly, he has helped her professionally making investments and making sure that she's well taken care of financially.

But beyond that, over the years, he's become a friend. They very often have Sunday dinner together. They can be seen doing things socially about the town. It really it's still a professional relationship, but it's also been a bit of a social relationship as well.

Now, unfortunately, this individual is ill. And she really is in the throes of what will be her final illness and things are not going well. She's in pain and she's in bed. And one day, she, when making one of his regular Sunday visits, she can't even come downstairs. She's up in the bedroom and he comes up, and she says, look, I've got something over here on the desk that I want you to look at. When you look at it, you will see that there is a contract there, a contract whereby I am selling you this house.

Now, this house was just appraised for $500,000. I know what this house is worth. But I want you to have it. And I know you can't afford $500,000. I think this is the kind of house in this town that you should be living in. And I know I won't be here forever. So what I want to do right now is sell you this house for $100,000.

He says, well, why would you do that? You have children. She says, those children, they never visit. They've just been awful. They'd just sell this house. I want this house to be in your care, and I want you to buy it. He says, no no no no, this is wrong. I don't want this. She says, I insist. So with that, in order to placate her, he signs the agreement. She signs the agreement.

Now, there is a will. And the will leaves all of her worldly possessions equally to her two children. But what you need to know is, remember, the contract, once it's made, would survive death. And therefore, in her estate, what they would be is a right to the $100,000, but no right to the house.

So unfortunately, soon after this contract is signed, this lady dies. And as you might expect, there's going to be a dispute. The children are going to be very loud in their argument that this is undue influence. Strong-willed person, weak-willed person, unfair transaction, no independent counsel. Why would you sell a house that she knows that is worth $500,000 for $100,000?

OK, now, you know, because I just told you, that this wasn't undue influence, OK? That she simply was doing what she wanted to do, that she wasn't a weak-willed person, that she was in fact carrying out her will for him to have the house.

But unfortunately, the reality of the way these cases go-- and I've dealt with some of these in my practice-- is that once the specter of undue influence is raised, and I think it would be raised by this situation, it's almost like, but not quite a presumption. In other words, unless the financial advisor is able to show that it wasn't undue influence, a court is likely to rule in favor of the children.

So that's the problem. And I think the thing that you want to keep in mind is how to avoid that kind of situation.