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

witnesses with respect to the importance of mania in affecting judgment as it relates to undue
influence.
Beyond determining what factors must be present to constitute undue influence, some
suggest that certain factors are more important than others in specific circumstances and that the
strength of certain factors renders others less important. Shulman et al (2007), for example,
observed that elders whose physical and mental health is severely compromised may require
lower levels of manipulation to gain their compliance than those who are less impaired.
Similarly, when applying the "SODR factors” to evaluate undue influence in will contests,
contestants in Wisconsin must prove the four elements by clear, satisfactory, and convincing
evidence. However, once three of the elements are proven, there need only be a slight showing of
the fourth (Welden-Smith 2009,and Miller v. Vorel, 105 Wis. 2d 112, 116, 312 N.W.2d 850 (Ct.
App. 1981). The extent to which these variables interact inversely or proportionately has not
been systematically addressed, but may suggest promising areas for further inquiry.
Predicting the risk of undue influence in the future is also problematic. Clearly, there are
situations in which a person who has not been unduly influenced is at risk. In determining the
need for conservatorship, for example, courts hope stop loss or harm before it occurs again, as
opposed to other legal interventions involving undue influence that attempt to correct past losses
or harm. However, there are no instruments or precedents with which to assess imminent risk
posed by undue influence. Risk assessment theory posits that past victimization raises the risk of
future victimization, suggesting that those who have been unduly influenced in the past are more
likely to be unduly influenced in the future. There is, however, a need for prospective, as
opposed to retrospective, remedies if undue influence is to be prevented.
Tools to measure undue influence are clearly needed to provide guidance to legal
professionals, courts, and practitioners. This includes evidence-based tolls that measure such
factors as the strength of relationships, the efficacy of specific tactics employed and their relative
strength, and psychological manipulations. IDEAL, the only existing tool that has been
developed to date to assess undue influence in elder abuse, has not been validated (personal
communication, July 24, 2009).
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