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

More documents

Recommendations

Info

The purpose of this article is to suggest a statutory definition of undue influence. Part II considers the current approach to undue influence in California and in other states, focusing on case law, statutes, and secondary sources. Part III recommends two different approaches to defining undue influence, a four-prong test and a presumption model. Implementing one of these approaches will address the problems associated with the lack of a definition for undue influence in the California Probate Code. II. Background A. Undue Influence in California Although there is a definition of undue influence in the California Civil Code, 15 the courts have made numerous definitions. Undue influence is generally defined as an exertion of influence over the donor, which overcomes the donor’s free will and causes a transfer that the donor would not have otherwise made. 16 Although each jurisdiction defines undue influence differently, the definitions generally focus on an involuntary testamentary act due to coercion or control being exercised over the testator that destroys the testator’s free will. 17 1. Definition of Undue Influence by California Courts In 2002 the California Supreme Court defined undue influence as “pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying testator’s free agency.” 18 A long line of California cases have held that a presumption of undue influence is created where there is a confidential relationship 15 California Civil Code §1575. 16 Restatement Third of Property. 17 Sacks, Robert N., Making Sure the Gift is Valid: Lack of Capacity and Undue Influence Considerations. 18 Rice v. Clark (2002) 28 Cal.4 th 89. 47
etween the testator and the influencer, a transfer for no consideration, an opportunity to exert undue influence, a particular susceptibility to undue influence on the part of the transferor, and undue benefit to the party who participated in the procurement of the transfer. 19 Other cases have held that there is a presumption that a document was procured by undue influence if the following three factors are present: (1) confidential relationship between the alleged influencer and the testator; (2) influencer actively participated in the preparation of the testamentary document; and (3) the result is unnatural or unduly favors the alleged influencer. 20 Without the presumption, however, the burden of proof is on the party contesting the will to establish undue influence. 21 Typically the elements of undue influence are: a grantor who is susceptible to having his or her free will overcome, a transfer of property that is inconsistent with the voluntary actions of the testator, with the influencing party receiving something that he or she ordinarily would not have. 22 In the seminal California case Odorizzi v. Bloomfield School District, the California Court of Appeal explained, “the essence of undue influence is the use of excessive pressure by a dominant person over a servient person resulting in the will of the servient person being overborne.” 23 The court cited the following factors as indicative of excessive pressure: (1) discussion of the transaction at an unusual or inappropriate time, (2) consummation of the transaction in an unusual place, (3) insistent demand that the business be finished at once, (4) extreme emphasis on the untoward consequences of the delay, (5) use of multiple persuaders by the dominant side against a servient party, (6) absence of thirdparty advisors to the servient party, and (7) statements that there is no time to consult 24 financial advisers or attorneys. 19 Ross v. Conway (1892) 92 Cal.632, 635. 20 Rice, at 96-97; In re Estate of Hobart (1940) 16 Cal 2d 573, 581. 21 Tanibata, Sherrill Y., Mind Over Matters, Los Angeles Lawyer, October 2007. 22 Estate of Mann (1986) 184 Cal.App.3d 593; Estate of Sarabia (1990) 221 Cal.App.3d 599. 23 Odorizzi v. Bloomfield School District (1966) 246 Cal.App.2d 123. 24 Id. 48
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: whether undue influence has taken p
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 and 138:
Table 21. How long has the alleged
Page 139 and 140:
Table 24. Other elements/characteri
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 ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?