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

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continuity of purpose running throughout former wills indicating a settled intent in the disposition of his estate; (6) whether the disposition of the estate is such that a reasonable person would regard it as unnatural, unjust or unfair; and (7) whether the testator was susceptible to undue influence. 36 In Nevada, a presumption of undue influence is created where there is a confidential relationship between the alleged influencer and the testator, the alleged influencer actively participated in the preparation of the testamentary document, and the result is unnatural or unduly favors the alleged influencer. 37 The presumption then shifts the burden of proof to alleged influencer to show that the absence of undue influence was more probable than its existence. 38 At trial an examination of the totality of circumstances is essential. Susceptibility to influence will be an important factor, as well as physical and mental condition, social condition (including whether the testator was isolated or had access to unbiased advice, as well as legal counsel), significant changes in spending or lifestyle, and who took control of the actual disputed document after it was executed. 39 In North Carolina, the court found no undue influence where the testator was old and suffered from loss of memory and the proponent of the will helped the testator with her affairs, drove her to the attorney to make the will, and was present at the meeting. The proponent was a beneficiary of the will but not the testator’s own son or two grandchildren. The testator had also 36 Ramsey v. Taylor (2000) 166 Or.App. 241. 37 In re Estate of Peterson (1961) 77 Nev. 87, 95. 38 Id. 39 Dustman, Karen Dale, A Primer on Undue Influence: From Presumption to Proof, Nevada Lawyer, April 2007. 53
said at times that she was afraid of the proponent. 40 In one egregious example, a South Carolina court found undue influence where the testator’s son threatened to put her in a nursing home if she did not live with him, monitored all of her conversations with a baby monitor, controlled all of her finances, and controlled the execution of her will despite the fact that testator wanted everything to go to her children equally. The testator’s son also prevented any of his siblings from visiting their mother while she was in the hospital. 41 2. Statutes The undue influence statutes of Oklahoma, Montana, North Dakota, and South Dakota have the same exact language as California Civil Code §1575. Maine has perhaps the most comprehensive undue influence statute, which provides an excellent model for California: 42 1. Presumption. In any transfer of real estate or major transfer of personal property or money for less than full consideration or execution of a guaranty by an elderly person who is dependent on others to a person with whom the elderly dependent person has a confidential or fiduciary relationship, it is presumed that the transfer or execution was the result of undue influence, unless the dependent person was represented in the transfer or execution by independent counsel. 2. …Confidential or fiduciary relationships include the following: A. A family relationship between the elderly dependent person and the transferee…including relationships by marriage and adoption; B. A fiduciary relationship between the elderly dependent person and the transferee…such as with a guardian, conservator, trustee, accountant, broker or financial advisor; C. A relationship between the elderly dependent person and a physician, nurse or other medical or health care provider; D. A relationship between the elderly dependent person and a psychologist, 40 In re Will of Prince (1993) 109 NC App. 58. 41 In re Estate of Cumbee (1999) 333 S.C. 664. 42 Maine Revised Statutes Annotated §1022. 54
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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 and 52: guardian/ward, physician or nurse/p
Page 53: undue influence reduced from the ca
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
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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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