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

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1. Victim characteristics contributing to vulnerability include incapacity resulting from dementia, mental illness, or impairment; deficits in judgment or insight; altered states of mind (which may be induced), resulting from medications, sleep deprivation, etc.; emotional distress (which may also be induced). Some analysts and practitioners have noted that people with “dependent personalities” are at heightened risk. The Diagnostic and Statistical Manual (DSM-IV) defines persons with dependent personality disorder as emotionally dependent on other people, who spend great effort trying to please others, who tend to display needy, passive, and clinging behavior, and who have a fear of separation. Another personality characteristic that has been mentioned repeatedly is “acquiescence.” Acquiescence, which is not included in the DSM-IV, is generally taken to mean persons who are overly compliant or “too agreeable.” Induced states such as learned helplessness, Stockholm Syndrome, and battered partner syndrome have also been identified as impediments to free will. 2. Influencers’ power. Experts agree that to constitute undue influence influencers must be in positions of power or authority toward those they influence. They may be in positions of trust or confidence, which can be formal (e.g., the powerful person has a legal duty toward the less powerful person, as in the case of fiduciaries) or informal (as in the case of family members or neighbors). Their power may also be based on professional authority, disproportionate strength or status, or the nature of the relationship. Caregivers who provide life sustaining care hold particular power. Clergy and spiritual advisors are also considered to be in positions of power toward those they counsel. Psychotherapists and physicians are also in positions of power relative to their clients or patients. 3. Improper actions or tactics. Influencers take affirmative steps or actions to persuade victims to engage in behaviors that are contrary to their interests in ways that exceed what is considered to be “normal” persuasion. Actions suggestive of undue influence include controlling weaker persons’ environment and social interactions by imposing isolation, insulating them from outside supervision and advisors, poisoning their relationships with others by “bad mouthing” them, and invoking fear of others. Other agreed-upon actions or tactics include inducing dependency through “puppeteering” (inducing trust or 11
submissiveness to point that victims mindlessly follow whatever demands or requests are made), by withholding or interfering with care, and reinforcing feelings of helplessness. Influencers may use threats or enticements or even physical force to gain compliance or emotionally manipulate those they wish to unduly influence by playing on their loyalties. Legal experts have focused on the role of influencers in manipulating transactions and the settings in which they occur. For example, influencers typically initiate transactions and do so in secrecy. They may discourage or prevent victims from seeking third party advisors or independent advice and carry out actions outside of normal settings (e.g. asking someone in a nursing home to transact legal business), or when elders are near death, on heavy medication, or recently widowed. 4. Unfair, improper, “unnatural,” or unethical transactions or outcomes. Legal experts generally agree that to constitute undue influence, harm must result such as the loss of assets or property or inadequate care. Legal experts have focused on transactions that are considered unfair or improper by objective measures or what is considered “reasonable,” such as the sale of victims’ property below market value, or gifts made by victims that are not commensurate with the length and quality of their relationships with recipients. Other examples that are suggestive of undue influence are when those executing documents cannot explain them, when the transactions diverge significantly from those they have made in the past (e.g., uncharacteristic changes in wills, trusts, etc.), and transactions that are considered “unnatural” in the sense that they diverge from what is normally expected (testators change wills to benefit new friends as opposed to “natural heirs.”) Improper relationships include sexual relations between professionals or caregivers and their clients, fiduciaries who are also clients’ beneficiaries, etc. Case Examples Case One An 80-year-old man with a diagnosis of dementia became increasingly forgetful after his wife died. As his needs increased, his daughter, who lived in another state, set up resources for him and monitored his care. One of the resources she engaged was housekeeping one a week 12
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 and 10: More recent law is contained in Cal
Page 11: searching bibliographic databases a
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
Page 61 and 62: 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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