In the practice of elder law, winning undue influence cases is an almost Herculean task. Courts are inclined to find that testators had sufficient mental capacity to carry out their dealings and as such, most Undue Influence cases are dismissed due to lack of evidence. But difficult is not impossible and the 2014 clarification of the undue influence statute in California has armed petitioners with a greatly improved ability to persuasively argue their positions.
Those of us working in the area of elder law/elder abuse are frequently discouraged from pursuing “gray “ area cases that have egregious results but may lack a strong incapacity argument.
However, the 2014 clarification of the Undue Influence statute in CA has greatly improved petitioner’s ability to organize the mass of information typically uncovered in these cases and craft a coherent and rigorous argument to help convince the court that the outcome was unfair and deserving of reversal. UI can exist in cases where the elder is clearly of “sound mind”, but susceptible to Undue Influence secondary to ailments, cognitive decline, dependency, and/or isolation.
California Undue Influence Statute
Currently, undue influence (UI) refers to a coercive dynamic between two individuals that involves unfair “excessive persuasion”. Undue Influence is a legal construct that is defined in the California Welfare and Institutions Code section 15610.70. Specifically, 15610.70 states:
“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.Considering these factors, when putting together undue influence cases, it’s important to start with a timeline that includes previous dispositions and current suspicious transactions. Determining whether a shift has occurred in financial habits and banking preferences is important in developing a well-rounded argument for undue influence.
Developing Winning Undue Influence Cases
Considering these factors, when putting together undue influence cases, it’s important to start with a timeline that includes previous dispositions and current suspicious transactions. Determining whether a shift has occurred in financial habits and banking preferences are important in developing a well-rounded argument for undue influence.
The next step is organizing the information you uncover both by timeframe and in light of the CA UI statute above. Undue influence is broader than “capacity” and looks at the entire person in terms of vulnerability. Specifically, note the following red flags in cases of suspected UI:
- social or environmental risk factors,
- psychological and physical risk factors, and
- legal risk factors.