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

ear a confidential relationship to one another, a confidential or authoritative relationship
between the parties need not be present when the undue influence involves unfair advantage
taken of another's weakness or distress.”
Some have attempted to distinguish “normal” influence from that which is “undue”
(Blinder, 2003; Quinn, 2001). Blender (2003) contends, for example, that while convincing frail
or disabled people to take actions they might otherwise not take may be influence, it only
becomes “undue“ when the action is in the service of the influencer’s own interests and the other
elements are present. Coffey & Cummings (2000) observe that even when influence is exercised
in the execution of a will, even when it coercive, is not “undue” if it does not change the
preexisting disposition of the testator. That, is, if the bequest or gift would have been made
anyway, absent the influence, then no undue influence has occurred. Making this determination
obviously, requires knowledge of the testator’s long-term wishes and intentions.
Disagreement also surrounds the factors that render people susceptible to undue
influence, or what makes “weaker” parties weak. Perhaps the most controversial factor is
cognitive impairment. Although most experts list cognitive impairment, including dementia, as a
significant factor, most also contend that it is not required and that anybody can be unduly
influenced under the right circumstances. As described earlier, however, many have observed
reluctance by courts to determine that someone with capacity has been unduly influenced
(Naimark, 2001; Turkat, 2003).
Distinguishing undue influence from other factors affecting free will is difficult because
multiple factors are often present in cases. For example, in will contests, contestants frequently
allege both lack of mental capacity and undue influence (Blinder, 2003). Similarly,
conservatorship petitions frequently cite lack of mental capacity as well as undue influence
among the reasons for the filing. Duress, which is “any unlawful threat or coercion used...to
induce another to act [or not act] in a manner [they] otherwise would not [or would],” (Black’s
Law Dictionary, 1990) is another threat to free will that is likely to be alleged along with undue
influence. Duress is often used interchangeably with menace.
The extent to which other specific impairments play a role has also been the subject of
disagreement. Spar, Hankin, & Stodder (1995) note that there is disagreement among expert
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