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

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UNDUE INFLUENCE: DEFINITIONS AND APPLICATIONS Final Report to the Borchard Foundation Center on Law and Aging March 2010 Introduction In 2009, the Superior Court of California, County of San Francisco, undertook to study the phenomenon of undue influence, supported by a grant from Borchard Foundation Center on Law and Aging. The impetus for the project arose from the lack of a definition of undue influence in the California Probate Code. The term itself appears in the Probate Code where the execution of wills is concerned (California Probate Code §6104 (2010)), when a gift is in question (California Probate Code §21350 (2010)), and in other sections concerned with will contests and prohibited transferees. It is also specifically mentioned in the criteria for a probate conservator of estate*. A conservator of the estate may be appointed for an individual who is “substantially unable to manage his or her own financial resources or resist fraud or undue influence” (California Probate Code §1801(b) (2010)). And yet, there is no statutory definition of undue influence in the California Probate Code. Rationale for Project on Undue Influence Probate Courts The need for a clear definition of undue influence has emerged as California probate courts and probate courts across the country increasingly must deal with conservatorship petitions alleging that undue influence is imminent, is actively taking place, or took place within the prior few months and is in danger of occurring again. This context is different from the usual court proceeding where allegations of undue influence concern matters which took place in the more distant past and the focus is on an outcome, usually one transaction, such as a will or a contract. *Conservatorships in California are approximate to adult guardianships in other states. The term conservatorship will be used in this report because the project originated in California. 1
Claims of undue influence can be difficult to understand and prove, both because of the lack of a definition in the Probate Code and because it occurs behind closed doors without witnesses (McNaughton, 2002). Increasingly, though, probate courts have staff such as investigators or visitors who go out and interview proposed conservatees and determine their circumstances, including the presence of apparent undue influence. Probate courts are also receiving more information from community practitioners such as Adult Protective Services social workers, physicians, and hospital discharge planners. In fact, professionals from these groups often supply the background and justification for petitions for conservatorship. In California, the definition of undue influence is contained in California Civil Code §1575, which was enacted in 1872, a date which calls into question its application in the 21 st century. The other 49 states also have little to no guidance regarding the definition of undue influence in their probate codes, as will be shown in this report. Thus, probate judges across the country lack Probate statutory support when they must consider imposing a conservatorship on an elder who is allegedly being victimized by someone using undue influence. Additionally, there is the risk that cases will not be handled consistently. Complicating the picture is traditional thinking that mental capacity and undue influence are intrinsically linked. In other words, undue influence occurs only if there are deficits in mental functioning. As Nerenberg (2010) (Appendix C) notes in her literature review for this project, a California court found otherwise in the Estate of Olson: Soundness of mind and body does not imply immunity from undue influence. It may require greater ingenuity to unduly influence a person of sound mind and body, and more evidence may be required to show that such a person was overcome than in the case of one weak of body and mind. But history and experience teach that minds of strong men and women have been overborne, and they have been by a master mind persuaded to consent to what in their sober and normal moments, and free from undue influence, they would not have done. Despite this clear finding and the reality that charismatic and malevolent leaders throughout history have imposed their thoughts and wills on entire countries, the perception that undue influence cannot exist without mental deficits persists. 2
Page 1: UNDUE INFLUENCE: DEFINITIONS AND AP
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
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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
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undue influence reduced from the ca
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said at times that she was afraid o
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According to Dr. Spar, the common r
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disposition to exert undue influenc
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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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