Undue Influence: Definitions and Applications - California Courts ...

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Specific circumstances in which wills are likely to be challenged are when testators have psychiatric conditions, including dementia (accounting for 40%), alcohol abuse (28%), and other neurological/psychiatric conditions (28%). In these situations, courts must determine whether “testators,” those executing wills, had “testamentary capacity.” The criteria for testamentary capacity were defined by Lord Cockburn in 1870. Known as Lord Cockburn’s Rule, they remain the basis for most American and English commonwealth inheritance laws. 1) The testator understands the nature of the act he or she is engaging in. The individual must know that he or she is writing a will and what a will is. 2) The testator has to appreciate the effect of the act (the distribution of wealth). 3) The testator must know the extent of his or her bounty (property) in order to appreciate the significance of the decision. 4) The testator comprehends and appreciates the claims to which he ought to give effect (those who should be included and excluded, or, as it is commonly phrased in current language, “know their natural heirs”). 5) The final component is that no insane delusion shall influence his will. In the Mohr study, allegations of undue influence were made in 56% of contestations, and most challenges to wills based on undue influence were successful (Mohr, 1997). Although definitions of undue influence with respect to wills vary by state, most laws contain the notion of a power imbalance or dependency between the parties that is used to influence (through coercion, compulsion, or deception) the weaker party to secure changes in how assets are distributed to the stronger individual. Courts require a showing that the will of the testator is subjugated to the will of another. It must also be shown that testators’ disposal of property is different from that which would have occurred otherwise (Nievod, 1992). The Presumption of Undue Influence Ordinarily, those who seek to show that certain acts or transactions were the product of undue influence have the responsibility for proving that undue influence has occurred. However, in certain situations in which the likelihood of wrongdoing is high, it may trigger a “presumption” of undue influence. When a presumption exists, the onus shifts from the accuser 101
to the accused to show that there was no wrongdoing. The presumption of undue influence, in one form or another, exists in all states (Meyers, 2005). The presumption of undue influence typically arises when confidential relationships exist between the parties and the weaker or dependent persons make substantial gifts to or execute contracts with the dominant parties. For example, when lawyers and other fiduciaries profit or gain from contracts with their clients, the contracts are “presumptively invalid.” Several states have acknowledged that certain circumstances are especially indicative of undue influence and refer to them as “badges” of undue influence. They include: • The person executing the will (the testator) is physically weak and or mentally impaired; • The will is “unnatural” in its provisions; • The relationship between the testator and beneficiary has developed recently and is of comparatively short duration; • The beneficiary actively participated in the preparation of the will; • The beneficiary has the will in his or her possession; • The beneficiary has made efforts to restrict the person’s contacts with the “natural objects of his or her bounty”; and • The beneficiary has absolute control of the testator’s business affairs. A presumption of undue influence can be rebutted or dissolved by contrary evidence that shows that transactions were in fact the result of free deliberation and that the person entering into the contract had full capacity, knowledge of all the facts of the contract, time to reflect on the contract, and the opportunity to consult with outside fiduciaries or experts. To trigger the presumption of undue influence in cases alleging undue influence in will cases, persons contesting transfers must show that: 1. The person executing the will (the testator) was susceptible to the influence of others; 2. The testator and alleged influencer had some type of confidential relationship; 3. The alleged influencer used the confidential relationship in order to secure a change in the testator’s post-death distribution of property; 102
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UNDUE INFLUENCE: DEFINITIONS AND AP
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Claims of undue influence can be di
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probate courts. They encounter it a
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4. Focus groups with San Francisco
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More recent law is contained in Cal
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searching bibliographic databases a
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submissiveness to point that victim
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Elements of Undue Influence Describ
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Category I Category II Category III
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Category I Category II Category III
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Focus Groups To gain greater insigh
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for love, emotional attachment, or
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who would deliver the money.’’
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esidence (as opposed to, for exampl
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percent), followed by a change in a
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escinding the sale of the house. Ri
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Capacity Declaration Form The menta
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Case Examples Case Five A 75-year-o
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to undue influence and to more reli
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Project staff have been invited to
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APPENDIX A REPORTS OF CASES DECIDED
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The facts upon which the allegation
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APPENDIX B A STATUTORY DEFINITION O
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whether undue influence has taken p
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etween the testator and the influen
Page 51 and 52: guardian/ward, physician or nurse/p
Page 53 and 54: undue influence reduced from the ca
Page 55 and 56: said at times that she was afraid o
Page 57 and 58: According to Dr. Spar, the common r
Page 59 and 60: disposition to exert undue influenc
Page 61 and 62: her overall mental and physical wea
Page 63 and 64: Familial relationships are frequent
Page 65 and 66: This presumption of undue influence
Page 67 and 68: element (4) requires a disposition
Page 69 and 70: intentions of testator). However, w
Page 71 and 72: APPENDIX C Literature Review on Und
Page 73 and 74: 7. How professionals exploit relati
Page 75 and 76: that can be brought to bear in doin
Page 77 and 78: professionals who became controvers
Page 79 and 80: • Hostage takers threaten to kill
Page 81 and 82: Walker identified four general char
Page 83 and 84: of anxiety, avoidance behavior and
Page 85 and 86: and Vicary later retracted some of
Page 87 and 88: protecting themselves against manip
Page 89 and 90: not exhibit Stockholm syndrome, law
Page 91 and 92: financial gain. Others have focused
Page 93 and 94: esult or outcome of the undue influ
Page 95 and 96: Association, 2008). Naimark (2001)
Page 97 and 98: 2. Power Differentials Undue influe
Page 99 and 100: goes back even further. Abraham Nie
Page 101: the signing of contracts, the contr
Page 105 and 106: The authors note that courts tend t
Page 107 and 108: ing a claim that the church had use
Page 109 and 110: 8. An elder’s will, living will,
Page 111 and 112: covered under the prohibited transf
Page 113 and 114: ecovery of damages, attorneys’ fe
Page 115 and 116: As noted earlier in this literature
Page 117 and 118: witnesses with respect to the impor
Page 119 and 120: Donohue, W. A. (1985). The politics
Page 121 and 122: Naimark, D. (2001). Financial explo
Page 123 and 124: Rusch, J. J. (1999). The social eng
Page 125 and 126: APPENDIX D Capacity Declaration For
Page 127 and 128: CONSERVATORSHIP OF THE PERSON ESTAT
Page 129 and 130: APPENDIX E Court File Review - Deta
Page 131 and 132: Table 8. Age of proposed conservate
Page 133 and 134: Table 12. Proposed conservatee’s
Page 135 and 136: Table 16. Other traits of alleged a
Page 137 and 138: Table 21. How long has the alleged
Page 139 and 140: Table 24. Other elements/characteri
Page 141 and 142: Borchard grant file review 1. Case
Page 143 and 144: Borchard grant file review 12. Tact
Page 145 and 146: Borchard grant file review 20. Does
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