700.12F. [6] Undue Influence-Fiduciary Relationship Claimed

700.12F [6] Undue Influence--Fiduciary Relationship Claimed The law provides if [name of defendant] [names of defendants] entered into the contract only because a party subjected [name of defendant] [names of defendants] to undue influence, [name of plaintiff] cannot enforce the contract against [name of defendant] [names of defendants]. [Name of defendant] [Names of defendants] [claims] [claim] and [has] [have] the burden of proving by clear and convincing evidence there was a fiduciary relationship between the parties and the agreement upon which [name of plaintiff] relies is void because of undue influence by [name of plaintiff] [and] [or] [a third party]. In order to show a fiduciary relationship, [name of defendant] [names of defendants] [has] [have] the burden of proving [he] [she] [it] [they] placed such trust and confidence in [name of plaintiff] that [name of plaintiff]'s opinion could overcome [name of defendant's] [names of defendants's] own free will. To show a fiduciary relationship, [name of defendant] [names of defendants] [has] [have] the burden of proving by clear and convincing evidence all three of the following: 1. 2. [Name of defendant] [Names of defendants] placed trust and confidence in [name of plaintiff] [or a third party] [Name of plaintiff] [or a third party] actually or impliedly agreed to exercise [his] [her] [its] judgment on behalf of [name of defendant] [names of defendants]. [Name of plaintiff] [or a third party] gained influence and superiority over [name of defendant] [names of defendants]. 3. If [name of defendant] [names of defendants] [proves] [prove] a fiduciary relationship, [name of plaintiff] has the burden of proving the following by clear and convincing evidence in order to enforce the contract: (1) (2) (3) The contract was fair; and the contract did not result from any undue influence over [name of defendant] [names of defendants]; and [name of defendant] [names of defendants] had independent advice. Undue influence is more than just advice or persuasion or an appeal to [name of defendant's] [names of defendants's] own reasoning. In deciding whether there was undue influence, you may consider whether, before the contract was made, there was full disclosure to [name of defendant] [names of defendants] of all the material circumstances surrounding the contract, whether the contract was fair, and whether [name of defendant] [names of defendants] had the opportunity to obtain independent advice. Plaintiff [denies that there was a fiduciary relationship present] [and] [denies that there was any undue influence exerted upon the defendant]. You will address these issues in question [__] on your verdict.