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

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Similarly, under element (3), both beneficiaries were active in procuring the will of their spouses. Arthur’s wife was present at the attorney’s office when the will was discussed and in the hospital where the will was executed. Irene’s husband was also present and participated in the drafting of his wife’s will. Finally, both Arthur’s and Irene’s wills cut off their beloved children in favor of their new spouses. Based on all of the above, had the court been applying this model, both wills would have been found to be a product of undue influence. Using the factors-based approach will successfully eliminate the prior inconsistencies associated with not having a statutory definition of undue influence in the probate court. 69
APPENDIX C Literature Review on Undue Influence Lisa Nerenberg Since the mid-1990s, interest in the role of undue influence in elder financial abuse has grown. This can perhaps be accounted for by the fact that undue influence offers a compelling explanation for situations that are increasingly coming to the attention of adult protective service workers, law enforcement, and others in the field of abuse prevention. These include incidents in which elders who appear to be acting freely (those with minimal or no cognitive impairment and who are not being overtly coerced) consent to exploitative transactions, remain in abusive relationships, and defend those who seek to harm or exploit them. In many cases, victims have strong emotional attachments to their abusers. Some refuse to believe that abuse has occurred even in the face of significant losses, impoverishment, or homelessness. Some even defend their abusers. Practitioners in the field of elder abuse prevention recognize that elders with cognitive impairments are often tricked, misled, or intimidated into surrendering money or property by signing documents like powers of attorney, deeds, or other contracts; and, that under these circumstances, victims are not acting “freely.” They further recognize that abusers may gain compliance through threats and coercion. But cognitive impairment and coercion do not explain those situations in which victims appear to be acting freely. Most practitioners in the field of elder abuse prevention, including social workers, adult protective service workers, and legal and health care professionals, adhere to ethical and practice principles or guidelines that acknowledge clients’ autonomy and right to make their own decisions. This extends to actions or choices that appear eccentric, risky, or even foolish. As a result, they have been reluctant to call seemingly counterproductive actions into question for fear of treading on clients’ civil liberties. But as awareness of abuse increases and more of these 70
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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
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Elements of Undue Influence Describ
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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 and 66: This presumption of undue influence
Page 67 and 68: element (4) requires a disposition
Page 69: intentions of testator). However, w
Page 73 and 74: 7. How professionals exploit relati
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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
Page 117 and 118: witnesses with respect to the impor
Page 119 and 120: 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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