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.
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:
Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
Use of affection, intimidation, or coercion.
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.
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:
In the area of social or environmental risk factors, examples such as social isolation, family conflict, and dependency, especially if there has been some change in circumstances. In terms of psychological or physical risk factors, physical disability, substance use, cognitive impairment, and mental illness are listed as factors that increase susceptibility to UI. Regarding legal risk factors, note unnatural provisions in a will and/or evidence of active procurement.
Once you have accomplished these two things, it’s important to tie everything together with a well-structured narrative arc. To successfully win undue influence cases, attorneys cannot just state the various risk factors present and show a suspicious timeline of activity, they need to marry the two into a cohesive argument. This can best be accomplished by explaining the tactics used by the offending party to unduly influence the victim. These tactics may include things like controlling the necessities of life for the victim, coercion or intimidation or implementing dramatic or inappropriate changes for the victim under the guise of expertise. By establishing that the victim was increasingly susceptible to undue influence and then outlining suspicious activities and exploitative tactics used against the victim, attorneys can showcase an inequitable outcome designed to defraud the victim through undue influence.
In this next section, we present a clinical case of alleged UI in order to illustrate some of the elements that characterize these complex cases. After each case study, we provide an analysis of the study that draws upon the conceptual framework discussed above.
Ms. K. a 77-year-old woman developed a relationship with a contractor after she discovered that they shared a passion for aviation. The contractor had been living in a garage apartment while completing work on the main home. After about 2 months, he moved into the main home and developed a close friendship with Ms. K. She gave him permission to use her private plane housed at a nearby airport. Neighbors reported that Ms. K. had been less social, and reluctant to talk about her new friend/contractor. They indicated that she had also demonstrated changes in her habits including purchasing new furnishings and a car, where she had been noted to be very frugal in times past. Ms. K. was divorced and had no children. Her sister was still living, and their relationship was decent, but they were not able to visit each other often and had become less close. After about 6 months, Ms. K. suffered a fall and was hospitalized for a broken hip. Her friend/contractor visited her at the hospital with some legal documents, including a power of attorney and a quitclaim deed. Following her hospitalization, he had her moved to an assisted living facility on the far side of the community and moved into her main home and continued to use her plane. After her death a few months later, her revised estate plans came to light leaving everything to the new friend. Her sister contested the new will, raising concerns of UI.
In the case of Ms. K., there are a number of suspicious facts that would provide a rationale for a retrospective assessment of capacity and UI. Record reviews (legal, medical, financial, email, cell phone) and collateral interviews (neighbors, friends, family members) must be drawn upon for the assessment. Although the approach is different in a retrospective assessment, that is one that occurs after the death of the alleged influenced person, one can use the same framework for data collection and presentation.
In terms of environmental or social risks, there was evidence of family conflict (no close family members) and an increase in dependency. Ms. K. had friends in her community, especially among other pilots, and was noted by several collaterals to have become less social and more isolated after her relationship with the contractor had started. Most of her friends suspected that it was romantic, but were not certain. Other collaterals reported that the contractor continued to be involved with another younger woman throughout his relationship with Ms. K., outside of her awareness. The interviews described Ms. K. as increasingly infatuated with the contractor, and willing to capitulate to his desires for nicer furnishings and a new car. These behaviors were described in sharp contrast to a frugal woman whose only luxury was her plane.
In terms of psychological risk factors, medical records noted some risk factors for cognitive impairment (hypertension), and admit records at the hospital describe her mental status as 24/30 consistent with some mild cognitive impairment, especially in the area of memory. Prior to her hospitalization, she was reported to have become increasingly dependent upon her tenant for assistance around the house secondary to those changes. But at the same time, was described as lucid by neighbors. Following her admission to the assisted living facility, Ms. K attempted to leave against medical advice, and a psychologist was asked to complete an assessment of her cognitive functioning and mood. The report indicated that although Ms. K. presented well, impairments in the areas of executive functioning, judgment, and insight were notable. Further, Ms. K reported that she would only be staying at the facility until her friend returned from a business trip in about a month. She was unaware that he remained in the community, was living in her home, and had access to all her of her financial resources.
In terms of legal risk factors, the time of the change in estate planning when Ms. K was hospitalized and her lack of awareness of the implications support a finding of UI. A review of financial records indicated that the contractor had been using her ATM to withdraw cash (50 K) as soon as she was hospitalized, and there was no indication that he was employed. Ms. K contacted an attorney to discuss her situation but never followed up as her health declined further, and she died secondary to the effects of a stroke (CVA).
Taken together, Ms. K presented with increased environmental, psychological, and legal risk factors that supported a finding of UI. Mild cognitive impairment, physical disability, declining health, and social isolation, increased her susceptibility to UI. The unnatural aspects of her estate planning, evidence of active procurement, and their timing further support a finding of UI. Tactics employed by the influencer included isolation, deception, and affection on behalf of the influencer. In this matter, a settlement was reached that favored her sister and the case did not go to trial.
Currently, in California, undue influence is defined by “excessive persuasion” that overcomes a person’s free will and results in inequity. In making their determinations, courts consider four key undue influence elements: the vulnerability of the victim, the influencer’s apparent authority, the actions used by the influencer, and the equity of the result. Any single factor is not enough on its own to prove undue influence but a combination of some or all of them may.
The recent clarification of undue influence as excessive persuasion with guidelines for describing the dynamic provides a helpful framework for organizing and presenting these cases in court. While undue influence cases are still somewhat of an uphill battle in California, following these guidelines and working with experts in neuropsychology and elderly care can dramatically improve an attorney’s chances of arguing the coercive factors of the case and thus provide a winning outcome for their client.
