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

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2. In taking an unfair advantage of another’s weakness of mind; and 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress. Pressure of some type is always a part of undue influence situations. In a seminal California case, Odorizzi v Bloomfield, undue influence was used against a person who was not an elder and had mental capacity. The person was a schoolteacher who had been arrested on Saturday, June 10, 1964 on criminal charges of homosexual activity. On Sunday, June 11, 1964 he signed a statement resigning from his teaching position, but only after pressure from his superiors who had come to his home. The resignation was accepted by the school district on June 13. When he sought to be reinstated that fall, he was refused and thereafter filed a lawsuit alleging that his resignation was invalid because it was obtained through duress, fraud, mistake, and undue influence and given at a time when he lacked capacity to make a valid contract. In Odorizzi v. Bloomfield School District, the California Court of Appeal, referring to California Civil Code §1575, found that only undue influence applied to the situation and stated, “the essence of undue influence is the use of excessive pressure by a dominant person over a servient person resulting the will of the servient person being overborne.” The court cited factors that indicated excessive pressure: 1. Discussion of the transaction at an unusual or inappropriate time; 2. Consummation of the transaction in an unusual place; 3. Insistent demand that the business be finished at once; 4. Extreme emphasis on the untoward consequences of the delay; 5. Use of multiple persuaders by the dominant side against a servient party; and 6. Absence of third-party advisors A recently released film, The Last Station, contains many of the pressure factors cited above as well as other factors cited by Nerenberg (2010) (Appendix C) in her literature review. The main conflict in the film centers on whether Leo Tolstoy, the great Russian writer, should leave his literary estate to his family or to a group of people advocating his philosophy of life. He is induced to execute his will in favor of the group. However, after his death, a court reversed that act. It may be informative to read that court decision. 7
More recent law is contained in California Welfare and Institutions Code §15610.30 et seq., which address financial abuse of an elder or dependent adult. In 2009, that section and others in the Welfare and Institutions Code were amended. The term undue influence was added. Section 15610.30(3) of the California Welfare and Institutions Code now states that financial abuse of an elder or dependent adult occurs when a person or entity does any of the following: “Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriate, obtaining, or retaining, real, or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Probate Code §812, or by undue influence, as defined in Civil Code §1575, or both.” Thus, undue influence is legally related to financial abuse. Section 15657.6 of the Welfare and Institutions Code—which references an elder lacking capacity (pursuant to California Probate Code §812) or being of unsound mind, but not entirely without understanding—states that a person or entity must return real or personal property if the elder or the elder’s representative demands it. Failure to do so in a timely fashion subjects the perpetrator to the same remedies available for financial abuse, namely, damages, attorney’s fees, and costs. Although the California Probate Code does not contain a definition of undue influence, it does contain specific information as to determining deficits in mental functions in §811 and the capacity to make decisions in §812. These statutes may prove helpful in crafting legislation pertaining to undue influence and are discussed later in this report. In her analysis of California law related to undue influence, Welden-Smith (2009) (Appendix B) focuses on will contests. She offers an approach to the lack of a definition of undue influence in the California Probate Code. While it is based on undue influence in the context of wills and not living people, it is instructive and, as will be seen later in this report, adaptable to a larger view of undue influence and possible construction of a statutory definition of undue influence for the Probate Code (Nerenberg, 2010) (Appendix C). Welden-Smith sets out a four-factors model: (1) The person who made the will suffered from mental and/or physical conditions that could permit his freedom of will to be overcome; 8
Page 1 and 2: 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: 4. Focus groups with San Francisco
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
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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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