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

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The Building Blocks of Undue Influence Although the psychology of undue influence is not yet well understood, a framework for understanding it seems to be emerging, which highlights the following features: 1) Factors affecting susceptibility or vulnerability; 2) Roles and relationships between victims and abusers; 3) Psychological manipulations and techniques; and 4) Outcomes. 1. Victims’ Vulnerability The literatures on undue persuasion and mind control contain numerous examples of “normal” people being induced or persuaded into doing things they would not have done otherwise. There is no evidence to suggest, for example, that prisoners of war who renounced their governments or turned on comrades were different from those who did not in terms of their cognitive functioning. Similarly, there is no reason to believe that hostages, victims of domestic violence, or cult inductees fall outside the boundaries of normalcy. Some experts in fact have posited that “virtually anybody can be unduly influenced if the influencers or techniques used against them are powerful enough” (Singer, 1992). However, certain conditions are believed to render certain people more vulnerable or susceptible. These include either permanent or temporary impairments that result from illness, accidents, or decline, or induced states (e.g, by withholding food, water, medications, or care). Some conditions, such as debilitating grief reactions, are related to situations or circumstances. Perhaps the most commonly cited vulnerability associated with undue influence is diminished mental capacity. In fact, some analysts believe that there must be some level of cognitive impairment for undue influence to occur. Others concede that while diminished capacity is not a requirement for undue influence, it is easier to unduly influence those who have impairments. Courts, in evaluating undue influence, have tended to focus on victims’ cognitive capacity and lawyers have noted that it is easier to prove undue influence in cases where victims have cognitive impairments (American Bar Association and American Psychological 93
Association, 2008). Naimark (2001) suggests that courts’ reliance on cognitive capacity assessments stems from the fact that capacity is measureable, whereas such factors as emotional vulnerability and dependency, power differences between victims and influencers, and the pressure that perpetrators bring to bear on their victims are more difficult to calibrate. In general, that which can be measured is given great weight and that which cannot be measured is given less weight. In the case of undue influence, this approach may lead to missing an important aspect of the analysis. The emerging literature on fraud suggests that extremely subtle cognitive impairments increase vulnerability to certain types of fraud. For example, a recent study Jacoby, Bishara, Hessels, & Toth (2005) suggests a link between memory deficits and vulnerability to scams. Shulman et al (2007) suggest that the relationship between cognitive capacity and susceptibility to undue influence is directly proportional. That is, the lower an individual’s cognitive status, the less pressure is needed to undermine their will. Conversely, a highly functional individual requires a higher level of pressure or persuasion. Other cognitive impairments that are believed to heighten vulnerability to undue influence stem from developmental disabilities and mental illness. Spar, Hankin, & Stodden (1995) suggest that mania, which impairs judgment and impulse control, heightens susceptibility. Other mental health problems that are believed to increase susceptibility to undue influence include depression, anxiety, and substance abuse. Some have suggested that “characterologic weaknesses” or personality disorders may also contribute to vulnerability. Dependent personality, in particular, has been frequently cited (Hall, Hall, Myers, & Chapman, 2009; Turkat, 2003). The Diagnostic and Statistical Manual, DSM-IV, defines persons with dependent personality disorder as individuals who are emotionally dependent on other people and who spend great effort trying to please others (American Psychiatric Association, 1994). Individuals diagnosed with the disorder tend to display needy, passive, and clinging behavior, and have a fear of separation. Other common characteristics associated with dependent personality disorder include: 94
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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
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Category I Category II Category III
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Focus Groups To gain greater insigh
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for love, emotional attachment, or
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who would deliver the money.’’
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esidence (as opposed to, for exampl
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percent), followed by a change in a
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escinding the sale of the house. Ri
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Capacity Declaration Form The menta
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Case Examples Case Five A 75-year-o
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to undue influence and to more reli
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Project staff have been invited to
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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 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: esult or outcome of the undue influ
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
Page 121 and 122: Naimark, D. (2001). Financial explo
Page 123 and 124: Rusch, J. J. (1999). The social eng
Page 125 and 126: APPENDIX D Capacity Declaration For
Page 127 and 128: CONSERVATORSHIP OF THE PERSON ESTAT
Page 129 and 130: APPENDIX E Court File Review - Deta
Page 131 and 132: Table 8. Age of proposed conservate
Page 133 and 134: Table 12. Proposed conservatee’s
Page 135 and 136: Table 16. Other traits of alleged a
Page 137 and 138: Table 21. How long has the alleged
Page 139 and 140: Table 24. Other elements/characteri
Page 141 and 142: Borchard grant file review 1. Case
Page 143 and 144: Borchard grant file review 12. Tact
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Borchard grant file review 20. Does
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