When is undue influence or lack of capacity present when giving away property? What factors or tests have the courts put in place to prove this was present?
According to 23 Am. Jur.2d Deeds § 176, the definition of "Undue influence," needed to contest conveyances, is that influence that dominates a grantor's will and destroys his or her free agency and coerces it to serve the will of another. A grantor who has been unduly influenced does not have the requisite intent to execute the deed. However, a deed executed as a result of undue influence practiced upon the grantor is voidable rather than void, and if, before the grantor takes steps to avoid the deed, the grantee therein conveys the premises to an innocent purchaser, a court of equity will extend protection to such purchaser. Undue influence constitutes an equitable ground for the cancellation of a deed. Undue influence is distinguishable from duress, in that undue influence is a more subtle domination of the grantor's will, especially by one who stands in a relation of confidence with the grantor. Whether improper influence was exercised must be inferred from the facts and circumstances of the particular case, such as the situation of the grantor and his or her relation to others, his or her condition of health and its effect upon his or her body and mind, his or her dependence upon, and subjection to, the persons claimed to have influenced him or her, and their opportunity to wield such influence. An unnatural, unreasonable, improvident, or unjust disposition of property suggests undue influence, though a mere suspicion that the execution of a deed was obtained through improper means is not sufficient to establish undue influence. The fact that the grantor, in executing a conveyance, was actuated by the motives of affection, esteem, and gratitude for favors shown, does not make out a case of undue influence.
The question of undue influence is one of fact.
Test of Undue Influence; Considerations
The test of undue influence is whether the grantor exercises his or her free agency and acts voluntarily, and consideration must be given to all the surrounding circumstances, such as the relationship of the parties, the absence of independent advice, and the inadequacy of consideration. As long as the grantor is not overborne and rendered incapable of acting on his or her own motives, his or her acts are and not those of another. Accordingly, each case of alleged undue influence must be determined on its own facts, the courts taking into consideration all the surrounding circumstances. Particular circumstances which should be taken into consideration in determining whether a deed was procured by undue influence include: the character of the transaction, the divergence of results accomplished from results normally to be anticipated,  the inequality of distribution,  the situation of the grantor,  the relationship of the parties,  the activity of the beneficiary and the participation by the transferee or his or her agent in the preparation of the deed,  the time and manner of offering suggestions or advice and the underlying motive thereof,  and the grantor’s condition of mind and body. Although such circumstances may not be sufficient either singly or collectively to establish conclusively that a deed was obtained by undue influence, they are nevertheless proper for consideration on such issue.
A section of the above list is interesting to note, “situation of the grantor,” comes from the case Wither v. Wither, 363 Pa. 431, 70 A.2d 331 (1950), in this case the court found that the grantor was in extreme anxiety concerning her future home and that the grantee induced her to convey the property. The plaintiff, who brought the suit, had resided with her son until his death. After the son's death the plaintiff was required to...