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

More documents

Recommendations

Info

Table 23. Tactic(s) used by alleged abuser Number Percent Playing on weaknesses 19 76% Lying or deception 17 68% Repeated solicitations 10 40% Fostering dependence 9 36% Relationship poisoning 8 32% Increasing closeness or intimacy in relationship 8 32% Isolation 6 24% Reinforcing feelings of helplessness 5 20% Use of romantic overtures or sex to gain compliance 5 20% Invoking family loyalty 5 20% Multiple persuasions (multiple arguments/ inducements) 4 16% Eliciting sympathy 4 16% Multiple persuaders (multiple people going along with influencer) 3 12% Knowingly ignoring or violating an advance directive 2 8% Aggressive initiation of transactions 2 8% Discouragement of third party advisors or independent advice 2 8% Transaction in unusual setting 1 4% Secrecy 1 4% Emphasis on haste 0 0% Transaction at unusual time 0 0% Appealing to elder’s affinities 0 0% Other 4 16% Multiple tactics 25 100% Note: Percentages do not sum to 100 because all cases involved multiple tactics. 137
Table 24. Other elements/characteristics of the undue influence Number Percent Transaction unfairly benefits others 20 80% Elder is ignorant of facts or cannot explain facts of transaction Level of elder’s care not commensurate with amount paid Changes in wills, trusts, etc., diverge significantly from past Behavior of caregiver falls outside of professional responsibility or violates professional ethics 12 48% 8 32% 3 12% 2 8% Lottery scam, sweepstakes, etc. 2 8% Level of elder’s care not commensurate with assets 1 4% A person in a position of power/responsibility did not take steps to prevent the act that benefited him or her 1 4% Other 9 36% Note: Percentages do not sum to 100 because some cases involved multiple elements/characteristics. 138
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 and 12:
searching bibliographic databases a
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
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
Page 75 and 76:
that can be brought to bear in doin
Page 77 and 78:
professionals who became controvers
Page 79 and 80:
• Hostage takers threaten to kill
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
Page 87 and 88: protecting themselves against manip
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 and 108: ing a claim that the church had use
Page 109 and 110: 8. An elder’s will, living will,
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: Table 21. How long has the alleged
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
show all

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

Create successful ePaper yourself

Delete template?

Save as template?