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

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pathology. For vulnerability enhancers, Dr. Turkat outlines the three types of people who will generally take advantage of a susceptible person. These are con artists, the psychologically damaged, and those who were tempted over time although did not originally set out to take advantage. These people generally use common methods to cultivate the exploitation, including increasing dependency needs, relationship poisoning, self-promotion, restricting access, deceptive manipulations, reinterpreting, events and inactive relatives. Dr. Turkat explains that vulnerability enhancers create the trust, reliance, and submission on the part of the susceptible person in favor of the manipulator. Finally, there must be a right moment to usurp the will of the victim. According to Dr. Turkat, this right moment occurs when the manipulated person is finally submissive enough to execute the redirection of their assets. Execution variables include taking advantage of a particular mental state, increasing the vulnerable person’s discomfort, pressuring the client, and puppeteering the client. D. Where Things Are Now: How the Legal Community Treats Undue Influence To summarize, today the definition of undue influence in most states includes a combination of certain factors. In general, evidence of the following facts and circumstances tends to establish the existence of undue influence in the procurement or execution of a will: 46 (1) testator’s susceptibility to undue influence, including age, physical infirmity, mental infirmity, isolation, and dependence on others; (2) relationship between principal beneficiary and testator, including a fiduciary relationship or other confidential relationship; (3) the beneficiary’s 46 Cote, Michael J., Undue Influence in Execution of Wills, American Jurisprudence Proof of Facts 2d, 109. 57
disposition to exert undue influence; (4) the beneficiary’s opportunity to exert undue influence; (5) the beneficiary’s exertion of control over testator as to other, non-testamentary matters; and (6) an unnatural disposition of estate under a challenged will, indicated by an unusually favorable treatment of the influencer, unusually unfavorable treatment of the natural objects of testator’s bounty, or inconsistent provisions of prior wills. III. Analysis A. The Problem With Not Having a Statutory Definition of Undue Influence When Arthur Greenhill married his fourth wife, Adelle, he was 65 years old. Four and half months later he was dead. He left behind his widow, children, and a will written on his death bed. In the will, Arthur’s new wife was to receive the bulk of his estate. Arthur’s four children from his first and second marriages, with whom he had close and loving relationships, received gifts of only $10 each. Arthur’s previous dozen or so wills had devised everything he has to his children. Nevertheless, Arthur’s widow, as executor of the estate, petitioned for probate of the will. The children contested on the grounds that their father had executed it under the undue influence of his new wife. The allegation was based on the fact that Arthur signed the will in question while in critical condition after a heart attack, and with his death expected at any time. In fact, just two hours before the signing, Arthur’s doctor had determined that any further questioning of Arthur would likely result in his death. Arthur was in extreme pain and barely spoke in the hours after being rushed to the hospital. According to the testimony of his doctor, Arthur may have spoken a few words to his wife during this time at the hospital. His wife then inquired “if it would be possible to bring a 58
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UNDUE INFLUENCE: DEFINITIONS AND AP
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Claims of undue influence can be di
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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 and 54: undue influence reduced from the ca
Page 55 and 56: said at times that she was afraid o
Page 57: According to Dr. Spar, the common r
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
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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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