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

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(2) A relationship existed with someone whereby that person had an opportunity to influence the person who made the will; (3) The person who benefited from the will was active in procuring the will; and (4) The will cuts out those people or organizations that would naturally benefit from the will or, the will is contrary to the prior expressed intentions of the will maker. Undue Influence and Probate Law in Other States The review of definitions of undue influence as they apply to conservatorship or adult guardianship in other states’ probate statutes was conducted with the assistance of Professor Rebecca Morgan at the Stetson University College of Law. Using electronic technology, Dr. Morgan assigned students to work with the Project Director to identify state probate codes to see if they contained definitions of undue influence. Not a single state has a clear definition of “undue influence” in its Probate Code, although, like California, most reference the term. Some states, namely Florida, Georgia, Louisiana, Nevada, North Dakota, South Dakota, and Ohio, have partial definitions, which broadly define undue influence as something that occurs when a fiduciary or confidential relationship exists in which one person substitutes his own will for that of the donor’s will. Many states have definitions of undue influence in other code sections such as the civil code or penal code. In addition, most states, like California, have case law that sets out defining aspects of undue influence. It appears that states have been reluctant to place definitions of undue influence into their probate codes although despite the fact that cases governed by undue influence arise mainly in the probate context. Literature Review on Undue Influence The literature review consisted of a general overview of how undue influence and related topics have been by addressed by experts in the fields of psychology, law, criminology, victimology, and elder abuse. The findings are partially described below, with the full review included as Appendix C. The general overview of undue influence was conducted by consultant Lisa Nerenberg. Articles were identified by the Project Director, Mary Joy Quinn and by 9
searching bibliographic databases and the World Wide Web. Ms. Nerenberg reviewed the literature on undue influence as it pertains to elder abuse and related areas that have been referenced in the literature on undue influence, which include: 1. How totalitarian regimes control populations; 2. How captors induce prisoners of war (POWs) to denounce their countries, collaborate with their captors, and turn on fellow prisoners; 3. How cults undue influence and maintain members; 4. Why victims of domestic violence may not leave abusive relationships or take action against their batterers; 5. How caregivers maintain control over those they care for; 6. How hostages bond with their captors; 7. How professionals exploit relationships of trust and confidence with clients; and 8. How white collar criminals and con artists use manipulation and deception for financial gain. The non-legal or psychological literature on coercive persuasion addresses a wide range of circumstances in which victims are induced to act in ways that are contrary to their own interest for the benefit of others. These range in scope from totalitarian regimes that have used coercive persuasion to maintain order and control, to psychotherapists who use their power over clients for sexual gratification. In the case of cults, the focus of attention has been on determining whether cults’ use of coercive persuasion justified such interventions as forced removal of the person from the cult followed by “deprogramming,” or petitions for conservatorship. In contrast, the law has focused mainly on will contests and, less frequently, on undue influence in contract law. Despite wide variations in the contexts and circumstances in which undue influence and coercive persuasion in general have been explored, the findings are remarkably similar in terms of the salient features. Psychologists, sociologists, criminologists, victimologists, legal experts, and courts have focused on the following: 10
Page 1 and 2: UNDUE INFLUENCE: DEFINITIONS AND AP
Page 3 and 4: Claims of undue influence can be di
Page 5 and 6: probate courts. They encounter it a
Page 7 and 8: 4. Focus groups with San Francisco
Page 9: More recent law is contained in Cal
Page 13 and 14: submissiveness to point that victim
Page 15 and 16: Elements of Undue Influence Describ
Page 17 and 18: Category I Category II Category III
Page 19 and 20: Category I Category II Category III
Page 21 and 22: Focus Groups To gain greater insigh
Page 23 and 24: for love, emotional attachment, or
Page 25 and 26: who would deliver the money.’’
Page 27 and 28: esidence (as opposed to, for exampl
Page 29 and 30: percent), followed by a change in a
Page 31 and 32: escinding the sale of the house. Ri
Page 33 and 34: Capacity Declaration Form The menta
Page 35 and 36: Case Examples Case Five A 75-year-o
Page 37 and 38: to undue influence and to more reli
Page 39 and 40: Project staff have been invited to
Page 41 and 42: APPENDIX A REPORTS OF CASES DECIDED
Page 43 and 44: The facts upon which the allegation
Page 45 and 46: APPENDIX B A STATUTORY DEFINITION O
Page 47 and 48: whether undue influence has taken p
Page 49 and 50: 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
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her overall mental and physical wea
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Familial relationships are frequent
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This presumption of undue influence
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element (4) requires a disposition
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intentions of testator). However, w
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APPENDIX C Literature Review on Und
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7. How professionals exploit relati
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that can be brought to bear in doin
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professionals who became controvers
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• Hostage takers threaten to kill
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Walker identified four general char
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of anxiety, avoidance behavior and
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and Vicary later retracted some of
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protecting themselves against manip
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not exhibit Stockholm syndrome, law
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financial gain. Others have focused
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esult or outcome of the undue influ
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Association, 2008). Naimark (2001)
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2. Power Differentials Undue influe
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goes back even further. Abraham Nie
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the signing of contracts, the contr
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to the accused to show that there w
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The authors note that courts tend t
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ing a claim that the church had use
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8. An elder’s will, living will,
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covered under the prohibited transf
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ecovery of damages, attorneys’ fe
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As noted earlier in this literature
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witnesses with respect to the impor
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Donohue, W. A. (1985). The politics
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Naimark, D. (2001). Financial explo
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Rusch, J. J. (1999). The social eng
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APPENDIX D Capacity Declaration For
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CONSERVATORSHIP OF THE PERSON ESTAT
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APPENDIX E Court File Review - Deta
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Table 8. Age of proposed conservate
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Table 12. Proposed conservatee’s
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Table 16. Other traits of alleged a
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Table 21. How long has the alleged
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Table 24. Other elements/characteri
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Borchard grant file review 1. Case
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Borchard grant file review 12. Tact
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Borchard grant file review 20. Does
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