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

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• Emotionally manipulating the victim by inducing fear, anxiety, agitation, paranoia and suspiciousness (includes “creating a siege mentality”); • Relationship poisoning (implanting the idea that the victim’s relatives and friends are only there because they want to exploit the elder); • Encouraging dependency; • Actively procuring finances and financial instruments; • Presenting themselves as healers, advocates, and protectors; and • Randomly bestowing rewards and punishments, thereby promoting “learned helplessness.” 4. Outcomes Most characterizations of undue influence in elder abuse have focused on the use of undue influence for financial gain. Some state elder and dependent adult abuse laws, however, address undue influence in relation to sexual abuse, suggesting that undue influence may be a tactic in achieving compliance in sexual acts (Stiegel & Klem, 2007). This association has not, however, been systematically explored in the elder abuse literature. Brandl, Stiegel, & Heisler (YWCA of Omaha, 2006) explore the relationship between undue influence and late life domestic violence, suggesting that control and domination are, in themselves, goals. The Legal Context of Undue Influence The law assumes that unimpaired people are fully capable of making decisions and are thus responsible for their own actions. However, the legal system also recognizes that capable persons may be unfairly persuaded to do things they would not have done otherwise. Undue influence has therefore been characterized in law as an activity that destroys “free agency” and “substitutes another person's will” in legal transactions. Findings of undue influence “negate contractual consent” and are reason to rescind or nullify agreements. Courts also consider undue influence in determining the need for protective interventions like conservatorship (Quinn, 2005). The legal system has recognized undue influence for centuries. The term is believed to have been coined and popularized by Henry Bolingbroke in 1735 in an essay about improper electoral practices being used to influence voters (Slapper, 2007, para, 2). The concept, however, 97
goes back even further. Abraham Nievod (1992) describes a 1617 case in which Chancellor Francis Bacon found that a woman, known as Mrs. Death, had used undue influence to obtain a deed and will from “an old man about the age of eighty years and being weak of body and understanding and having a great estate of goods and land.” In determining if undue influence has occurred, courts, lawyers, and legal professionals look at many of the same factors described in the psychological literature. These include vulnerability that results from infirmity or diminished capacity, power differentials between the parties involved, the specific actions taken by influencers, and the harm that is produced. Perhaps the greatest difference between legal and psychological analyses and conceptualizations of undue influence is the legal system’s emphasis on evaluating specific transactions or decisions. Whereas the psychological literature focuses on patterns of conduct (e.g., relationships that are considered to be exploitative or artificially induced loyalties), legal discussions of undue influence typically focus on specific legal actions such as the signing of contracts, giving consent, or granting authority, and those actions or events leading up to the event in question. Courts look at subjects’ state of mind at the time documents were executed or decisions were made. The following sections describe how these factors have been addressed in the legal system. Imbalances in Power Just as psychologists recognize that certain individuals, by virtue of their knowledge, training, or relationships, wield power over others, the legal system recognizes that persons in “positions of trust and confidence” have an unfair advantage over those whose trust and confidence they hold. It also imposes on them a duty to act in the others’ best interest. When undue influence is alleged, courts typically begin by establishing whether a relationship of trust and confidence exists, and hence, the duty. Positions of trust and confidence may be established by law or informally. The Restatement third of property (2003) §8.3 divides confidential relationships into three categories: fiduciary, reliant, and dominant-subservient (Welden-Smith, 2009). A fiduciary relationship is one in which the powerful person has a legal duty toward the other. The powerful person is called a fiduciary and the person to whom they owe the duty is called the “principal.” Professionals (and others) who are likely to have a fiduciary duty are trustees, conservators, 98
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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
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The facts upon which the allegation
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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 and 94: esult or outcome of the undue influ
Page 95 and 96: Association, 2008). Naimark (2001)
Page 97: 2. Power Differentials Undue influe
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
Page 145 and 146: Borchard grant file review 20. Does
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