Undue influence in families is an act of abuse, often by heirs victimizing their elderly parents or other family members to increase their will inheritance or trust fund distributions. Undue influence can be actual or implied, and proving undue influence is the responsibility of heirs, beneficiaries, trustees of trusts, and administrators or executors of wills. If you suspect undue influence and need to contest a will or dispute a trust, here’s a guide.
What is undue influence?
Undue influence is a form of abuse. Undue influence is the abusive act of applying emotional, psychological or even physical pressure on another person to secure a benefit that person otherwise would not give them. In the estate planning world, it’s usually to force them to change a last will and testament or family trust to give them more than their fair share. A textbook example often involves a new spouse or love interest who unduly influences their betrothed to bequeath to him or her a vacation home that had been previously intended for the parent’s children. This is most classically done with threats, emotional abuse, or withholding sex and affection.
Generally, we see stepparents applying undue influence on an elderly spouse, resulting in the stepparent’s inheritance increasing, and the children’s inheritance decreasing. We also frequently see abusive children applying undue influence on their elderly parents to increase the size of their inheritance in a last will and testament, or increasing their trust fund distributions.
If you suspect undue influence, you should consult a trust litigation attorney early to ensure critical evidence isn’t lost and you’re in the best position possible to take right that wrong.
Undue Influence Definition and Meaning
The definition and meaning of undue influence, in wills and family trusts, generally refers to a situation where an abuser convinces a victim to increase the abuser’s inheritance, by use of threats, emotional abuse, withholding of sex or affection, or, in the worst of cases, even physical abuse.
Anecdotally, if an abusive child threatens to never speak to an elderly parent or keep them from seeing their grandchildren unless they’re given the vacation home that would have been split with all the kids, that may be considered undue influence. Per Wikipedia:
“Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. This inequity in power between the parties can vitiate one party’s consent as they are unable to freely exercise their independent will.”
“Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.
What are examples of undue influence in families?
The most common examples of undue influence in families that we see include the following:
Stepparents unduly influencing mom or dad
The most common situation we address is a stepmother using undue influence to coerce her husband to increase her inheritance or trust assets, thereby taking assets and monies away from other heirs, including her stepchildren. Read “The Guide to Undue Influence and Step Parents”
Children unduly influencing elderly parents
Equally common, we see abusive children threatening elderly parents in attempts to gain favor, or “get more in the will” than their brothers and sisters.
Caregivers unduly influencing elders
With some frequency, we protect children from losing their inheritance to caregivers who unduly influenced decedents.
Family friends unduly influencing elders
We also protect children and spouses from abusive friends of the deceased who used undue influence to get assets that were never intended for them.
Service providers unduly influencing elders
Finally, we have seen innumerable cases where doctors, dentists, chiropractors, plumbers, HVAC workers, students, teachers, therapists, etc. used undue influence to get estates intended for others.
While these are the most common examples, undue influence abusers can include: Parents, children, husbands, wives, partners, trustees, beneficiaries, attorneys, pastors, doctors, administrators, guardians, fiancees, neighbors and more.
Undue Influence Burden of Proof
Generally, the person claiming undue influence bears the burden of proof. This means the person who suspects undue influence must file a case in the County Probate Court where the undue influencer lives, typically with the help of a probate attorney. How is this different from other abuse cases? Well, if this were just a physical elder abuse case, the State of California may pursue criminal charges against the abuser, and the person filing the charge does not bear the burden of proof.
What are signs of undue influence?
The signs of undue influence can vary greatly. In a court of law, some of the signs of undue influence might be summarized as:
- Isolation from friends, family, or a social support system;
- Dependency upon the abuser;
- Abuser’s use of the victim’s financial assets;
- Psychological abuse, threats and intimidation;
- Physical violence, including threats of physical violence;
- Often the abuse is perpetrated against someone with diminished mental capacity or physical abilities.
Is there an undue influence test?
Yes, sort of. The government has established four elements that define undue influence. Per California legislature and California Welfare and Institutions Code section 15610.70:
“Undue influence” means 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.”
Is physical abuse considered undue influence?
While physical abuse also may be considered duress, it too will be presented to the court when trying to unwind an illegitimate will or trust on undue influence grounds. That is because an abuser who physically abuses a victim almost also also commits undue influence. Read “The #1 Difference Between Undue Influence and Duress”
How do I win an undue influence case?
To win an undue influence case, you need evidence. We’re often asked, “How can you prove undue influence?” Well, the evidence must support the elements of proving undue influence, which were stated above:
- Vulnerability of the victim.
- The influencer’s apparent authority.
- The actions or tactics used by the influencer.
- The equity of the result.
Evidence of undue influence often consists of a subtle accumulation of evidence, rather than a single fact. That evidence generally includes statements from the victim, abuser, loved ones, neighbors, care professionals, authorities, etc., but it also often includes digital communications like text messages, emails, social media posts, videos, and other evidence admissible in court. If we are able to gather evidence, preferably multiple pieces of evidence, for each element, then it becomes much more likely you’ll win your undue influence case when contesting a will or trust.
Is there a statute of limitations on undue influence in California?
Yes, there are various statutes that come into play when contemplating contesting a will or disputing a trust on undue influence grounds. The bottom line is that if you witness undue influence, you should seek the advice of a trust litigation attorney as soon as possible.
Undue Influence and Wills
- Decedent dies.
- Beneficiaries mourn.
- Probate or trust administration process begins.
- Beneficiaries are notified of their inheritance when they receive a copy of the will or trust.
- Beneficiaries are surprised assets have gone missing or they are getting less than expected.
- Beneficiaries suspect undue influence.
- One or more beneficiaries contact a probate dispute attorney.
- A contest petition is filed in the county probate court.
- The case is settled through the probate court processes or the matter is resolved at trial.
What if I’m falsely accused of undue influence?
If you’re falsely accused of undue influence, a probate litigation attorney can help protect you. Being falsely accused of undue influence is more common than you might think. At RMO we protect people wrongly accused of having committed undue influence every day. For a free consultation, call (424) 320-9444 or or email us any time at: firstname.lastname@example.org
Are undue influence cases common?
Is undue influence the same as financial elder abuse?
Undue influence can be a component of financial elder abuse. Frequently, an abuser may use undue influence to commit financial elder abuse. However, financial elder abuse can also include something as simple as forging a signature on a check. Forgery is not a component of undue influence, but we often see them go hand-in-hand in our cases.
What should I do if I suspect undue influence?
Contact a probate litigation attorney the moment you suspect undue influence. The sooner you begin the process, the sooner and easier it will be to protect the victim and what they intended for their estate. Most law firms, like RMO, 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. It really depends on what is fair for everyone. Don’t let fear that you “can’t afford it” deter you from taking advantage of a consultation with a probate attorney who may be able to help you get the result your loved one intended for you.
Do I need an undue influence lawyer near me?
We recommend finding an undue influence attorney familiar with the county probate court in the county where the victim lives or decedent lived. For example, if the decedent lived in Orange County, California, yet the real estate property is in Los Angeles, we recommend working with a probate lawyer in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.
Have questions? Call or email right now. It’s totally free.
About RMO Lawyers
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com