The #1 Difference Between Undue Influence and Duress

Undue influence and duress are frequently cited in probate and trust litigation. Both are used by abusers as a means to gain the favor of wealthy spouses and family members, with the goal of getting more estate assets.

What is undue influence in wills and trusts?

While undue influence can be cited in numerous areas of law, including trust and probate litigation, under California Welfare and Institutions Code § 15610.70, undue influence is defined broadly as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.”

What is an example of undue influence?

Because undue influence can be hard to identify, the American Bar Association suggests that all of the following shall be considered:

Vulnerability of the victim

Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where the influencer knew of, or should have known of, the victim’s vulnerability.

The influencer’s apparent authority

Evidence of apparently authority may include but is not limited to, status as a fiduciary, family member, care provider, health care processional, legal professional, spiritual adviser, expert, or other similar “helper.”

The actions or tactics used by the influencer

Evidence of actions or tactics used may include, but is not limited to, controlling necessaries of life, medication, the victim’s access to and interactions with others, access to information, access to medical care, or sleep.

Use of affection, intimidation, or coercion

Evidence of control over the victim through the use of affection – e.g. promising company or even sexual relations but only in a quid pro quo scenario – intimidation or coercion – e.g. threats of physical, mental or fiscal harm often requires third-person accounts, because the victim is often deceased or incapacitated and the abuser isn’t telling. Medical, caregiver, and financial records are often the key to proving these claims.

Unexpected changes

Evidence of abnormal changes in the victim’s behavior, including how they manage and care for themselves – e.g. think someone acting contrary to their “normal” self – and how they manage their property – e.g. think someone frugal suddenly acting like a spendthrift; use of haste or secrecy in effecting those changes, effecting changes at inappropriate time and places, and claims of expertise in effecting change. These are all evidence of abuse.

The inequity of the result

Evidence of the equity, or inequity, of the result may include, but is not limited to, the economic consequences to the victim or the victim’s heirs, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship with the party who is benefiting from the change. Take note though that evidence of an inequitable result, without more, is not sufficient to prove undue influence.

What is duress in wills and trusts?

Duress refers to a situation in which a person is threatened, physically forced, or violently induced to make a decision or commit an action. There are several requirements to qualify as duress:

• The threat must be of serious bodily harm or death;
• The threatened harm must be greater than the harm caused by the crime;
• The threat must be immediate and inescapable;
• The defendant must have become involved in the situation through no fault of his own;
• A person may also raise a duress defense when force or violence is used to compel him to enter into a contract, or to discharge.

What is an example of duress in wills and trusts?

Example of duress are typically quite clear:

Physical Abuse

An abuser physically forces the victim to give them estate assets, or make a change to a will or trust.

Violent Threats

An abuser threatens to physically hurt the victim unless they give them estate assets, or make a change to a will or trust.

What is the difference between undue influence vs duress?

If specific abusive acts can be detailed to the court, it may be duress. If negative outcomes were feared by the victim, it may be undue influence.

What does this mean? By law, proving duress requires that the victim provide the court specific details relating to acts the abuser committed, which forced the victim to make a decision or commit an act that he or she otherwise would not have done. An example of duress would be physical abuse by the abuser, ex., hitting the victim until they gave the abuser valuable jewelry.

Proving undue influence is more complicated. An example of undue influence would be for an abusive spouse to withhold affection, unless the abusive spouse were given valuable jewelry. You can likely see from this example just how gray, and hard to prove, these claims can be.

What should I do if I suspect undue influence or duress?

Contact a probate litigation attorney the moment you suspect undue influence or duress. The sooner you begin the process, the sooner you can protect the victim. Most law firms, like ours, offer free consultations. Take advantage. There’s nothing to lose.

How much does an undue influence attorney cost?

Probate litigation can be expensive, but many lawyers, like RMO, offer alternative fee arrangements, including contingent fee and hybrid fee arrangements, if you cannot afford or do not want to pay hourly. Don’t let fear that you “can’t afford it” deter you from taking advantage of a consultation with a probate litigation attorney who may be able to help you, and in an affordable way.

Do I need a duress or undue influence attorney near me?

We recommend finding an experienced probate litigation attorney familiar with the county probate court in the county where the decedent lived. For example, if the decedent lives in Los Angeles, we recommend working with a probate litigation lawyer in Los Angeles. A Los Angeles probate litigation lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.

At RMO, we help people like you address issues like these every day.