Recognizing and Addressing Undue Influence

A sad reality is there are some people who are willing to manipulate others for their own gain. These same individuals usually do not have reservations about exerting their influence over someone who is vulnerable in order to financially benefit. Sometimes the victim may even be preyed upon by those closest to them during estate planning. When a person tries to manipulate someone in this manner the conduct is referred to as exerting undue influence. Unfortunately, undue influence is not usually discovered until after the victim has passed away. However, by being aware of the signs you can improve your chances of recognizing and addressing undue influence before your loved one is harmed.

What is Undue Influence?

In California, the Welfare and Institutions Code 5610.70 (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 order to determine whether someone did something as a result of undue influence, the court must consider the following:

(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) (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. Which may include the following:

• Controlling the necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
• Use of affection, intimidation, or coercion.
• Evidence of changes to personal or property rights, made in haste or secrecy and 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 the economic consequences to the victim and any divergence from the victim’s prior intent or course of conduct or dealing. Equity also includes looking at the value of what was given versus any payment or services provides. The court can also look at the length and nature of the relationship between the giver and the receiver in determining the appropriateness of any changes.

The law provides that mere evidence that a result is not fair to a party without more, will not be enough to prove undue influence. Therefore, you have to more that level accusations that someone influenced your loved one. Often, families suspect undue influence when blood relatives are disinherited and new caregivers or friends become heirs to a loved one’s estate. However, coercive behavior can also occur within families when a relative exerts control over another and limits their contact with others.

Signs of Undue Influence

As the law indicates, when someone changes their will or trust in a manner that is dramatically different than their course of conduct in the past, there may be a problem. Another sign would be recent arrival of a new person in your loved one’s life who becomes overly involved in his or her financial affairs and later receives an unlikely benefit. Further, the inexplicable addition of someone to a bank account or property title may also be a sign of undue influence.

Proving an undue influence claim involves gathering and presenting evidence of the circumstances surrounding your loved one’s estate planning and life circumstances. To establish your case before the court, it would be best to have the advice of an experienced estate planning attorney. At the Law Offices of Alice A. Salvo, we are experienced California estate planning attorneys who understand the elements of undue influence Contact us today to schedule your consultation.