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

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important indicator because physical suffering can make the testator weak and susceptible to influence. Additionally, when there is physical suffering the influencer may be able to easily coerce the testator by withholding comforts, like pain medication. 68 The elderly are presumed to fall into the category of persons who are vulnerable to undue influence. Factors that contribute to their vulnerability include “mental and physical infirmities, dependence on others for help with finances and daily needs, loss of a spouse, lack of financial sophistication, and isolation.” 69 These factors highlight why elderly testators are typically taken advantage of by a family member or caretaker. However, in Nessen v. Nessen, the court held that although the grantor was seventy-five years old and suffered from mental and physical disabilities including pain, sleeplessness, forgetfulness, and vulnerability to persuasion, this was not enough to indicate undue influence without other factors. 70 Likewise, the court in Anderson v. Nelson, held “as a general rule, age, physical condition, and suffering or pain furnish no basis for setting aside a conveyance if the party seeking rescission exercised a free and untrammeled mind.” 71 It is not just having “influence” over the donor that makes a gift invalid; there must also be an element of the donor being pressured or coerced into making a gift that he or she would not have otherwise made. 72 “Undue influence causes a disposition different from that which one would have made if the other were permitted to follow his or her own inclinations.” 73 Therefore, 68 Id. 69 Birkel, Julia L., Byrne, John M., Bernatz, Dr. Susan I., Litigating Financial Elder Abuse Claims, Los Angeles Lawyer, October 2007. 70 Nessen v. Nessen (1933) 218 Cal. 59. 71 Anderson v. Nelson 83 Cal.App. 1,5 72 Sacks, Robert N., Making Sure the Gift is Valid: Lack of Capacity and Undue Influence Considerations. 73 Ross, Eunice and Reed, Thomas, Challenging Post-Death Distribution Plans Involving Lifetime Contracts, Deeds and Trust Instruments, Will Contests (Second Edition) §9:10. 65
element (4) requires a disposition indicative of undue influence by either an unnatural provision of will, or a disposition of property contrary to the expressed desire of testator. A will is unnatural if it “provides a substantial benefit to one who has no natural claim to it or a benefit that is out of proportion to the amounts received by other persons having an equal claim to participate in the testator’s bounty.” 74 This factor is not enough on its own and must be considered with other factors, as testators are entitled to dispose of their assets in any way they choose. For example, in Ruestman v. Ruestman, the court held that a decedent had the right to dispose of his property to his second wife to the exclusion of his son. 75 In order to establish element (4), Robert N. Sacks proposes some questions that are helpful and focus on the “why” behind the gift: does the gift seem natural for this testator; is the planned gift all of or substantially all of, the testator’s estate; and in some cases, why did the testator choose to disinherit one or more of his or her children. Evidence of why testators did what they did is useful in disproving undue influence because it tends to negate element (4). 76 However, a parent may favor one child or desire to please one child over another without amounting to undue influence. 77 As an example, an elderly parent may transfer a home to a child to the exclusion of his or her other children. In these situations, the contesting child would have to show that the gift was contrary to and not an expression of the parent’s wishes. 78 74 Cote, Michael J., Undue Influence in Execution of Wills, American Jurisprudence Proof of Facts 2d, 109. 75 Ruestman v. Ruestman (2003) 111 S.W.3d 464. 76 Sacks, Robert N., Making Sure the Gift is Valid: Lack of Capacity and Undue Influence Considerations. 77 Goldman v. Goldman (1953) 116 Cal.App. 2d 227. 78 Tanibata, Sherrill Y., Mind Over Matters, Los Angeles Lawyer, October 2007. 66
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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
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4. Focus groups with San Francisco
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More recent law is contained in Cal
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searching bibliographic databases a
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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
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: This presumption of undue influence
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
Page 109 and 110: 8. An elder’s will, living will,
Page 111 and 112: covered under the prohibited transf
Page 113 and 114: ecovery of damages, attorneys’ fe
Page 115 and 116: 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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