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

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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 Emotional distress resulting from situational events and losses: • Depressed • Lonely • Anxious • Fearful • Grieving Personality types/disorders Dependent personality: • Unable to make decisions without advice and reassurance • Avoids personal responsibility • Fears abandonment • Feels helpless when relationships end, causing person to move into other relationships immediately • Overly sensitive to criticism • Pessimistic and lacks confidence in ability to care Privilege or disproportionate status based on: • Gender • Age • Race • Class • Citizenship Caregiver’s power derived from access, authority, opportunity, and physical strength “Reliant relationships.” A weaker person relies on others for judgments or advice. “Dominant-subservient relationships.” A weaker person (e.g., someone with a mental impairment) is subservient to a dominant person. • Deprives person of sleep and sensory stimulation • Determines what person wears, what person eats, how person spends time, person’s finances • Controls person’s basic needs • Confines weaker party Controls information and communication: • Uses deception • Withholds information about outside world • Manipulates or reinterprets information Controls weaker party’s thoughts: • Instills new attitudes • Allows no criticism or input • Discourages critical thinking (defines world as good-evil, black-white) • Diverge from victim’s expressed wishes or past patterns • Are “unnatural” (provisions are different from what might be expected) • Relationship of parties has developed recently and is of short duration Behavior of professional or caregiver falls outside of professional responsibility or breaches fiduciary duty, or is in other ways, illegal, immoral, or inappropriate: • Fiduciary or caregiver as beneficiary • Caregiver, therapist, etc. as sexual partner Subjugation 15
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 for self • Fears losing support or approval if they disagree with others • Finds it difficult to be alone • Willing to tolerate mistreatment and abuse from others • Places the needs of their caregivers above their own • Naïve and lives in fantasy Acquiescent personality Passive personality Creates and/or reinforces feelings of helplessness or powerlessness: • Puppeteering: Inducing trust or submissiveness to point that victims mindlessly follow whatever demands or requests the exploiters make. • Reinforcing dependency by withholding care or assistive devices, preventing access by service providers, etc. • Raises questions about competence (e.g., as in the movie Gaslight) • Promotes idea that controller is all-knowing or all-powerful Victim’s lifestyle and environment do not reflect stated or past preferences Threats/enticements: • Uses romantic or sexual enticement to gain compliance 16
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: Elements of Undue Influence Describ
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
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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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