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

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C. A relationship between an elderly dependent person and a physician, nurse, or other medical or health care provider; D. A relationship between the elderly dependent person and a psychologist, social worker or counselor; E. A relationship between the elderly dependent person and an attorney; F. A relationship between the elderly dependent person and a priest, minister, rabbi or spiritual advisor; G. A relationship between the elderly dependent person and a person who provides care or services to that person, whether or not care or services are paid for by the elderly person; H. A relationship between an elderly dependent person and a friend or neighbor; and I. A relationship between an elderly dependent person and a person sharing the same living quarters. Hall et al (2009) drew from civil law and the literature on financial elder abuse to propose “red flags” or warning signs of undue influence. 1. An elderly person’s actions are inconsistent with past longstanding values or beliefs; 2. An elderly person makes sudden changes in financial management that enrich one individual; 3. An elderly person suddenly changes his or her will or disposition of assets, belongings, or property and directs assets toward one individual, who is not a natural “object of their bounty”; 4. A caretaker dismisses previous professionals and directs an older person to new ones (e.g., bankers, stockbrokers, attorneys, physicians, realtors); 5. An elderly person is isolated from family, friends, community, and other stable relationships; 6. A non-family caretaker moves into the home or takes control of an elderly person’s daily schedule; 7. An elderly person directs his or her income flow (e.g., Social Security benefits, pensions, trust distributions) to a caretaker; 107
8. An elder’s will, living will, or trust is altered with a new caretaker or friend as beneficiary or executor; 9. An elderly person develops mistrust of family members, particularly about financial affairs, with this view supported by a new friend, acquaintance, or caretaker; 10. An older person finds a new caretaker who guarantees lifelong care in exchange for the elder’s assets; 11. An elderly person is in a relationship characterized by a power imbalance between the parties, with the caretaker assuming restrictive control and dominance; 12. A caretaker or friend accompanies an elderly person to most important transactions, not leaving him or her alone to speak for himself or herself; 13. An elderly person writes checks for cash, in round numbers or large amounts, or gives cash gifts to the caretaker or the caretaker’s family; 14. An older person becomes increasingly helpless, frightened, or despondent, feeling that only the caretaker can prevent his or her further decline; and 15. An elderly person sees an acquaintance or caretaker as exalted, with unusual powers or influence. California Codes Pertaining to Undue Influence Like most states, California addresses undue influence in its contract and conveyance laws. California Civil Code §1575 describes undue influence as: • The use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; • Taking an unfair advantage of another's weakness of mind; or • Taking a grossly oppressive and unfair advantage of another's necessities or distress. In 2002, the California Supreme Court defined undue influence as “pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying testator’s free agency” (Rice v. Clark (2002) 28 Cal. 4 th 89). 108
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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
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guardian/ward, physician or nurse/p
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undue influence reduced from the ca
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said at times that she was afraid o
Page 57 and 58: According to Dr. Spar, the common r
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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
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Page 77 and 78: professionals who became controvers
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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
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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 and 102: the signing of contracts, the contr
Page 103 and 104: to the accused to show that there w
Page 105 and 106: The authors note that courts tend t
Page 107: ing a claim that the church had use
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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