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

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2. In taking an unfair advantage of another’s weakness of mind; 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress. In an undue influence case, a personal representative of an estate may bring a Civil Code §1575 undue influence claim under Probate Code §850. This is an equitable action that will be tried by the court. However, pleadings alleging undue influence often do not refer to language in Civil Code §1575. Despite not having a definition of undue influence, the California Probate Code does set out whether or not someone has the mental capacity to make a will in Section 6100.5(a). Further, Probate Code §811 provides factors to be considered by judges in determining capacity, which may prove helpful in creating a definition of undue influence: Deficits in mental functions: (a) a determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including… to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions… (1) Alertness and attention,…(2) Information processing,…(3) Ability to modulate mood and affect. 33 B. Undue Influence Law in Other States 1. Cases The laws of undue influence differ from state to state, but generally each state defines undue influence as “influence that deproves the grantor of freewill.” 34 The general elements of 33 California Probate Code §811. 34 Ross, Eunice and Reed, Thomas, Challenging Post-Death Distribution Plans Involving Lifetime Contracts, Deeds and Trust Instruments, Will Contests (Second Edition) §9:10. 51
undue influence reduced from the case law of many states are: (1) susceptibility to influence, (2) a confidential relationship between influencer and testator, (3) use of the relationship by the influencer in an attempt to get the testator to make a change of disposition, and (4) a change of disposition that is unconscionable. 35 In order to make showing of undue influence in Alabama, Connecticut, Iowa, Minnesota, Nebraska, Ohio, and South Dakota, the contesting party must prove a version of these four elements. Maryland, Missouri, North Carolina, Tennessee, Texas, Washington, and Montana have factors in addition to the four general ones. Wisconsin uses either a two-element test or a four-element test. Susceptibility, opportunity to influence, disposition to influence, and coveted result comprise the four-element test. Once the first three elements have been proven then there need only be a slight showing of the fourth. The two-element test consists of the presence of a confidential or fiduciary relationship between the testator and the influencer and “suspicious circumstances.” This creates a rebuttable presumption of undue influence in Wisconsin. Oregon also uses a suspicious circumstances test in determining whether a testamentary instrument is a product of undue influence, which includes the following factors: “(1) whether the challenged beneficiary participated in the preparation of the instrument; (2) whether the testator received independent advice from an attorney in preparing the instrument; (3) whether the instrument was prepared in secrecy and haste; (4) whether the testator’s attitude toward others had changed by reason of his or her relationship with the challenged beneficiary; (5) whether there is a decided discrepancy between a new and previous will of the testator and 35 Id. 52
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 and 48: whether undue influence has taken p
Page 49 and 50: etween the testator and the influen
Page 51: guardian/ward, physician or nurse/p
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
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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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