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

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The doctrine of undue influence derives from English courts. A will contest heard by Sir Francis Bacon as the Lord Chancellor of England in 1617 illustrates common aspects of the process of undue influence which emerged in the context of a will contest. These aspects include frail health, and physical dependency, false affection, relationship poisoning, threats and mistreatment, and involvement in the execution of documents by and in favor of the alleged abuser ((Welden-Smith, 2009; Appendix B) (Nerenberg, 2010; Appendix C)). A woman, having acquired an influence over an old and weak man, induced him by pretending affection for him and prejudicing him against his relatives to make a deed and a will in her favour, and thereafter by threats and cruelty prevented him from revoking these instruments, by virtue of which on his death she became possessed of his entire real and personal estate. In a suit by his next-of-kin against her and her husband: Held, that the deed and will should be made void; that the plaintiffs were entitled to the estate of the deceased; that they should have administration of the personal estate; and that there should be an inquiry as to all the personal estate and in whose hands all or any part thereof was or had been. Held, also, that the Attorney-General should be advised that complaint should be made of the woman’s conduct in the Star Chamber with a view to some exemplary punishment being inflicted upon her. (Appendix A) Community Practitioners The need for a clear definition of undue influence is also due to the “discovery” and upsurge in the reporting of elder abuse and neglect. This phenomenon, first described in the 1980s in the United States, resulted in a number of publications and research projects, as well as changes in state laws across the country. Various community agencies and organizations, especially Adult Protective Services, began working with aspects of elder abuse and neglect including undue influence. The “discovery” of elder abuse led to the “discovery” of undue influence (Nerenberg, 2008). Community practitioners such as hospital discharge planners, physicians, and Adult Protective Services professionals provide the supporting information for petitions for conservatorship. They, too, deal with undue influence, but from a different perspective than the 3
probate courts. They encounter it as a process that is happening in present time, not as a transaction that happened in the past. They also see it when finances are not directly or currently being abused. For example, community practitioners are concerned when an adult child with a criminal history convinces a frail elder that it is best if he or she moves in with them, when a caregiver supplies the elder with large amounts of alcohol, or when there is sexual abuse. Undue influence is mentioned in many state Adult Protective Services (APS) laws (Stiegel & Klem, 2007). APS referrals for petitions for conservatorship are frequently sent to the Public Guardian, a county agency that has the legal capacity to file for conservatorship and serve as conservator of both person and estate. Attorneys at that agency then prepare the petition and file it with the court. The lack of a clear definition of undue influence concerns these practitioners as well as other community practitioners who work with elders. There have been varying interpretations of the term, “undue influence” and queries about the meaning and application of the two phrases, “subject to undue influence” and, “unable to resist undue influence.” The latter phrase is contained in California Probate Code has been taken to mean that undue influence has already occurred or is imminent. There is also concern about being able to accurately predict undue influence and thus prevent it from happening in the future and resulting in impoverishment, homelessness, physical abuse, dependency, and inadequate care for elderly victims. Aging Population and Undue Influence Still another impetus for the study of undue influence is the aging of the baby boomers. This group of people has now reached the age of 60 and is growing faster than the general population. For instance, the elderly population in California was 12 percent of the state in 1990 but will grow to 14 percent by 2020. During the same time period, the group of people over age 60 will increase by 112 percent. Even more interesting is the fact that the “oldest old,” those age 85 and older, will increase by 143 percent by 2020 (California Department of Aging, 2007). It is the old-old, who are in most in need of assistance as chronic illnesses and infirmities of aging take their toll. According to anecdotal evidence and preliminary research, the old-old are the people most subject to conservatorships and possibly, undue influence (Quinn, 2005; Quinn & Nerenberg, 2005). One of the results of this growth of older people is that all lawyers, regardless 4
Page 1 and 2: UNDUE INFLUENCE: DEFINITIONS AND AP
Page 3: Claims of undue influence can be di
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
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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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