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

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of specialization, will likely find themselves working with people over 60, the age group usually dealt with only by trust and estate attorneys. According to Welden-Smith (2009) (Appendix B), attorneys will need to determine if their clients are free of undue influence in such matters as validity of deeds, contracts, powers of attorney, estate planning, wills, and testamentary gifts, which, when contested usually involve allegations of undue influence or fraud. Courts will also be dealing with more elders and with more commonly, with people over the age of 85. Research Design The project addressed the need for a definition of undue influence in the Probate Code that can be referred to by probate courts, Adult Protective Service personnel, Public Guardian personnel, and other community agencies in California to determine when proposed conservatees are unable to resist undue influence. An anticipated outcome was a checklist or assessment measures that would establish benchmarks or a rating system for determining whether undue influence had occurred or was likely to occur in the immediate future. For example, the measures might enumerate 6 to 10 criteria for undue influence, of which 4 to 6 must be present. Such measures would increase the likelihood that petitions for conservatorship in which undue influence is alleged are appropriate and identify cases of undue influence that may otherwise have been missed. Providing courts with such a statute in the Probate Code could potentially reduce the need for costly and protracted legal proceedings, which take place now in order to establish if undue influence has occurred in conservatorship petitions or will contests. Were undue influence to be defined in the Probate Code, specifically in the conservatorship section, consistency in the handling of cases would be further enhanced. included: The one-year project used both quantitative and qualitative approaches. Primary activities 1. A review of California state law related to undue influence; 2. A review of 50 states’ legislation to determine whether their probate codes contained a definition of undue influence; 3. A review of the social service and psychological literature on undue influence; 5
4. Focus groups with San Francisco Adult Protective Services social workers, staff from San Francisco Public Guardian, and private attorneys with expertise in probate law; and 5. A file review of 25 cases in San Francisco Superior Court selected because probate court investigators or researchers had determined that there were elements of undue influence in the case, as well as a related set of case studies. The project was carried out under the direction of Mary Joy Quinn, Director of the Probate Court of the San Francisco Superior Court. Two consultants, Eileen Goldman and Lisa Nerenberg, were hired to conduct the focus groups, file review, and literature review; and to assist in the development of an assessment tool or guidelines. The project was undertaken in collaboration with the California Administrative Office of the Courts (AOC), with Deana Piazza, Supervising Research Analyst, overseeing data collection and analysis. Other collaborators included Stetson University College of Law students supervised by Professor Rebecca Morgan, and law students under the supervision of the San Francisco Probate Court’s senior staff attorney, Stella Pantazis. Review of California Law and Undue Influence The review and analysis of California law was conducted by Rachel Welden-Smith, a law student, under the supervision of the Probate Court’s senior staff attorney, Stella Pantazis. (2009) (Appendix B). It included a review of the statutes, legal articles, case law, jury instructions, and an article on the psychology of undue influence. These sources contribute to a deeper understanding of undue influence and add factors that can be considered in crafting a definition of undue influence. One California case and one California statute stand out from Welden-Smith’s review and for that reason are detailed in this report. The first and most commonly invoked statute regarding undue influence is California Civil Code §1575, which was enacted in 1872 and is commonly cited as a definition of undue influence. The elements are: 1. The use, by one in whom a confidence is reposed by another, or who holds real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 6
Page 1 and 2: UNDUE INFLUENCE: DEFINITIONS AND AP
Page 3 and 4: Claims of undue influence can be di
Page 5: probate courts. They encounter it a
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 and 58:
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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