Undue influence cases can be complicated to prosecute. Historically, undue influence was limited to situations of influence over the mentally incapacitated. However, as our elderly population continues to grow states, including California, have responded with legislation that allows family members to pursue litigation in situations where a loved one may be of relatively sound mind and body yet susceptible to undue influence for other reasons. The demographic changes in the country and the constantly advancing nature of laws intended to protect against undue influence makes this area of law a topic worthy of observation and continued discussion. Here is a snapshot.
A victim of undue influence believes they will suffer if they fail to follow the demands of the abuser. This can include persuasion, domination, and threats. Undue influence refers to an inequitable situation in which one person uses their position of power to take advantage over another person. It could be framed as an abuse of the victim’s confidence or trust. As such, the victim is unable to freely act upon their own decisions, and instead the abuser controls their decisions.
In probate law, we commonly see abusers exercising undue influence over victims to obtain a larger inheritance, either after the abused passes but all-too-often both before and after they pass. For example, an adult child may psychologically manipulate or threaten an elderly parent to be given money now or the beach house in their will or trust. That undue influence could take the form of a threat to stop visiting the parent, to restrict the parent from seeing grandchildren, to stop providing care to the parent, including failing to provide essential help like food, water, bathing, etc., all in an effort to manipulate a benefit for the abuse, like money or the beach house.
Continuing the previous example, it is not undue influence if an adult child persistently asks an elderly parent to be given the beach house in the will. Pestering, begging, and repeatedly requesting something may be annoying, but it’s not undue influence. In most families one child has more needs than another, and often an elderly parent will help that child, seemingly too much in the eye of the child who does not need the help. While this type of support may be “unfair,” unless the needy child is subverting the parent’s decision making with his/her own, it’s not undue influence, even though it’s unfair.
California Welfare and Institutions Code section 15610.70(a) defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:”
(1) The 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, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, 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.
(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
(Added by Stats. 2013, Ch. 668, Sec. 3. (AB 140) Effective January 1, 2014.)
Most of the time, successful prosecutions have proven the victim is vulnerable to undue influence because of a weakened mental state. Another typical factor is the abuser’s access and relation to the victim. If the abuser has frequent private access to the victim, e.g. a hospital room, caregiving facility or living with a loved one, which then results in the victim being isolated and then making unnatural and inconsistent changes to a will or trust this is good starting point when trying to establish undue influence..
Historically, undue influence cases have been more frequently prosecuted in situations wherein the victim suffers from Alzheimer’s, dementia, schizophrenia, stroke symptoms, or other mental conditions, and the existence of these diagnoses will make undue influence easier to prove, but it is not absolutely necessary. The sad yet heroic tale of Mickey Rooney remains a prime example of how one can fall victim to undue influence even where no significant mental restriction exists.
No, it does not. Anyone who is reliant on a loved one, friend or other care provider are still susceptible to undue influence. Example from California Courts website:
“Soundness of mind and body does not imply immunity from undue influence. It may
require greater ingenuity to unduly influence a person of sound mind and body, and more
evidence may be required to show that such a person was overcome than in the case of
one weak of body and mind. But history and experience teach that minds of strong men
and women have been overborne, and they have been by a master mind persuaded to
consent to what in their sober and normal moments, and free from undue influence, they
would not have done.” (Nerenberg, 2010, Appendix C, “Estate of Olson”, see reference)
Undue influence is among the most common reasons for contesting a will or trust, and, commonly, a basis for seeking a conservatorship to protect a loved one from such abuse. While undue influence all-too-often goes undetected during an elder’s lifetime, when they pass and family has an opportunity to investigate and realize how a loved one has been taken advantage of these issues come to light. Where the abuse of a loved one can is discovered during their lifetime establishing a conservatorship will give someone the authority needed to remedy the wrongdoing, protect their loved one, and prosecute the wrongdoer.
Typically, undue influence cases involve claims relating to probate, wills, trusts, conservatorships and financial elder abuse and are best-prosecuted with the help of a probate litigation attorney experienced in handling financial elder abuse and undue influence cases.
Generally, we recommend that you work with a probate litigation attorney in the county of the living or deceased victim. This is primarily because the case will be prosecuted in the victim’s county, and familiarity with those local county courts, judges, and processes is a great advantage. However, if you live a long distance from the victim, you may consider a trust lawyer near you.
Talk to a probate litigator experienced in prosecuting undue influence and financial elder abuse claims. At RMO, we help protect the elderly everyday, and the consultation is always free. Give us a call anytime: (424) 320-9444, or email: firstname.lastname@example.org