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

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with a woman she found on the Internet. She became unhappy with the work of the housekeeper and tried to fire her, but her father wouldn’t allow it. The daughter later discovered that her father had married the housekeeper. After the marriage ceremony her father added or was induced to add his new wife’s name on his bank accounts as a joint tenant. The housekeeper drained the accounts and left the man after the money was gone. Reportedly she had been verbally abusive to him. Tactics used by the alleged abuser included secrecy, development of a romantic relationship and marriage, and manipulation to get herself put on joint financial accounts. In addition, she created dependency and infantilized the client by feeding and bathing him when he didn’t need it. She insisted that he did need it to “preserve his strength.” She isolated him, turned him against his family, and harassed other professionals who were hired to help him. She convinced him that she was “the only one who cared about him” in a threatening world, thereby creating a “siege mentality” and reinforcing his social isolation. She neglected his care and lived in a separate residence once they were married. Case Two An 82-year-old woman lived in her home with two sons, one developmentally disabled, the other with extensive criminal and substance abuse history. She had a history of psychiatric issues and had been diagnosed with schizophrenia. She had diabetes and was dependent on others for her daily care. Her sons neglected her care, which resulted in a below the knee amputation. The son with the criminal and substance abuse history used several tactics to get influence over his mother’s finances. He said that gang members were threatening him (which wasn’t happening) and that he needed money to appease them. He manipulated her delusions of paranoia to his benefit. He also manipulated her feelings of family loyalty in order to gain access to her bank accounts. The defining features of undue influence that appear in the literature review are related to Welden-Smith’s four-factors model (2009) (Appendix B) and are summarized in the chart that follows. 13
Elements of Undue Influence Described In Professional Literature Category I Category II Category III Category IV Victim characteristics contributing to vulnerability Influencers’ characteristics, sources of power, and opportunities Actions or tactics, including emotional, psychological, and legal manipulation Unfair, improper, “unnatural,” or unethical transactions or outcomes Incapacity resulting from: • Dementia • Mental illness • Physical/functional decline • Accident, injury Alert, oriented, physically capable but has vulnerabilities that have been induced or are personality based. Deficits in judgment or insight Altered state of mind (may be induced): • Under effect of medications • Sleep deprivation • Under the influence of alcohol • Pseudo dementia Persons in positions of trust and confidence. May be: • Formal (e.g., fiduciary) • Informal (e.g., family member) Professional authority resulting from job, profession, experience, training: • Care provider • Health care professional • Therapist • Clergy or spiritual advisor Superior strength Personality traits: • Charismatic • Persuasive Controls weaker party’s social interactions: • Imposes isolation • Insulates relationship from outside supervision and advisors • Suppresses loyalties • Induces sense of obligation and indebtedness • Plays on loyalties (family, cultural ties, etc.) • “Poisons” relationships with others • Creates “siege mentality” (all others intend harm) Controls weaker party’s behavior: • Imposes rules, rewards, punishments • Suppresses old behaviors Victim loses assets or property Victim loses control of assets or property Victim loses housing or care Victim’s care is inadequate or not commensurate with elder’s assets Transactions (including changes to wills, trusts, purchases, etc.) that: • Unfairly benefit influencers (purchases property below market value) • Involve gifts are that not commensurate with length and quality of relationship • Are abrupt 14
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: submissiveness to point that victim
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
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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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