Ms. K. a 77-year-old woman developed a relationship with a contractor after she discovered that they shared a passion for aviation. Email: swood@scrippscollege.edu, If you are tasked with a case involving undue influence in California, consider consulting with Dr. Stacey Wood. When dealing with wills in probate court, it is best to obtain adequate legal advice from a reputable law firm. Estate attorneys must first and foremost discover whether their client holds a compelling prima facie case of undue influence. Free Consults. Plead the undue influence with specificity (as above in the offensive posture) if your jurisdiction requires it. Laws vary from state to state, but generally, to win a lawsuit charging that a will was written under undue influence, the person bringing the lawsuit must usually prove that: The will left property in a way that was not what would be expected—in other … Because the person who made the will cannot come to court and testify about his or her reasoning and motivations, the court must rely on other witnesses. In these cases, the will challenger (the “plaintiff”) alleges that the proponent of the will (the “defendant”) exerted so much influence and … The next step is organizing the information you uncover both by timeframe and in light of the CA UI statute above. Currently, in California, undue influence is defined by “excessive persuasion” that overcomes a person’s free will and results in inequity. By using our site, you agree to our. 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. Anyone worried that undue influence affected the provisions of a last will and testament should seek immediate legal advice. by Stacey Wood | Sep 26, 2017 | Forensic Neuropsychology. Undue influence is available for use in a variety of settings, though it is most often... 2. By signing up you are agreeing to receive emails according to our privacy policy. The deteriorating health of a loved one is difficult to cope with and accept under any circumstances. Undue influence is the legal term for someone exerting so much pressure on another that it overcomes that person’s free will to execute contracts or make transactions. They accomplish this by scrutinizing the evidence at hand and weighing its effectiveness against each element of undue influence and against potential rebuttals the defendant may assert at trial. “The core legal principle that there must be proof of actual undue influence, which cannot be presumed merely from a marital relationship, evolved over time, resulting in a widely-applied, three-factor test governing a presumption of undue influence.” (see the Court of Appeals case In re Karmey. Thanks to all authors for creating a page that has been read 18,813 times. 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. 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 the practice of elder law, winning undue influence cases is an almost Herculean task. The stress of being manipulated can cause strong negative emotions, such as anger, sadness, and anxiety. 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. The unnatural aspects of her estate planning, evidence of active procurement, and their timing further support a finding of UI. After her death a few months later, her revised estate plans came to light leaving everything to the new friend. A qualified and experienced Florida Undue Influence lawyer for probate matters and a Florida Trust Litigation Attorney for Trust matters may be needed. If you go to mediation, a neutral third person will try to help you reach this settlement. We are a Veteran Owned Business, providing 20% discounts for Veterans, First Responders, Elementary and High School teachers. 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. 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. This indicates that the victim was fully informed and aware of the nature of the transaction and made a conscious choice to go through with the transaction in spite of the issues. It is not an issue of simply making an accusation or having a “hunch” that a testator or settlor was a victim of undue influence. It’s not an easy case to make, and the proof must be clear and convincing. Dr. Wood possesses significant experience as an expert witness in undue influence cases. Another Will Trumps the One Being Executed If the executor is trying to carry out the provisions of an outdated will, the newer will can trump this older will. It often requires family members and close friends to step up and take on additional responsibility for the affairs of the ill person as that person’s condition worsens and the sick person is increasingly unable to take care of themselves. 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. These behaviors were described in sharp contrast to a frugal woman whose only luxury was her plane. (3) The actions or tactics used by the influencer. Once you have accomplished these two things, it’s important to tie everything together with a well-structured narrative arc. Two Classes of Undue Influence: Actual and Presumed • Actual Undue Influence: Has been described as “cases in which there has been some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating. The transaction was fair to the victim. This article was co-authored by Clinton M. Sandvick, JD, PhD. If you are being sued on a contract that you want to avoid, you will plead undue influence in your answer, which is a defensive maneuver. 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. It can be difficult for family members to win an undue influence lawsuit, but it happens. 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. 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. Prior to her hospitalization, she was reported to have become increasingly dependent upon her tenant for assistance around the house secondary to those changes. See Dr. Wood’s, Fortunately, the 2014 clarification of the Undue Influence statute in California has significantly enhanced a petitioner’s ability to, . Unfortunately, some people see this situation solely as an opportunity for financial gain when the ill person has money or other valuable assets. The influencer is someone with a special or confidential relationship to the testator, like a nurse, caretaker, attorney, close friend, or even a family member. Your siblings will become more and more suspicious if they have no idea what is happening with your parent’s health care and … 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. Consider hiring an attorney. Determining whether a shift has occurred in financial habits and banking preferences are important in developing a well-rounded argument for undue influence. For undue influence claims you need to prove four elements: Vulnerability of the victim, Actions and tactics of the wrongdoer, Apparent authority of the wrongdoer, and; Equity; We typically can take nearly any case and find some facts to fit into each of these four categories, but that is not enough to win your undue influence … Speculation About Undue Influence Will Not Win the Case. This article discusses what undue influence is and how to properly plead and prove it in a court of law. Phone: (909) 706-2764 The exploitation of elderly people is an important problem that victimizes an estimated 5-million seniors each year. The burden of proof required for undue influence cases is more complex than meets the eye. At the close of discovery, you can file a motion for summary judgment. A more insidious kind of fiscal abuse that poses a threat to older people and their retirement nest eggs, however, is Undue Influence. 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). In order to trigger a presumption of undue influence a Plaintiff should begin with an examination of the relationship between the parties.41 The first question to be addressed in all cases is whether the potential for domination existed in the nature of the relationship itself.42 The test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor … Currently, undue influence refers to a coercive dynamic between two individuals that involves unfair “excessive persuasion.” It generally takes place when somebody exerts pressure on an individual that causes that person to act against her or his wishes, as well as for the benefit of the influencer or the friends or family members of the influencer. A forensic expert with experience with consulting on undue influence and financial capacity can be instrumental in developing a winning case. Doctor of Law, University of Wisconsin-Madison. References. Often the influencer divides the person from their loved ones and closest allies in order to more successfully coerce. This article has been viewed 18,813 times. 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. Typically, the plaintiff must show that the testator was unduly influenced by clear and convincing evidence. The Top 10 Ways to Avoid an Undue Influence Claim Against You #1: Be Transparent. Any single factor is not enough on its own to prove undue influence but a combination of some or all of them may. The types of documents or other items that will be allowed into evidence, Things that must be shown about the piece of evidence before admitting it into court, Different techniques that can or must be used in questioning different types of witnesses, Prior wills that had been properly executed, Radiological study views with the proper medical testimony to explain them, A medical or mental health specialist to discuss the victim’s capabilities, A person who was present when threats were made. (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. 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. If your case goes to trial, it will likely proceed as follows: Petitioner’s opening statements, defendant’s opening statements, petitioner’s presentation of proofs, defendant’s presentation of proofs, petitioner’s closing argument, defendant’s closing argument, petitioner’s rebuttal argument, ruling by judge or verdict by jury. Neighbors reported that Ms. K. had been less social, and reluctant to talk about her new friend/contractor. Discovery: In discovery, the parties are able to gain access to documents and potential testimonies that the other side either has or intends to use at trial. In this motion, you argue that there are no meaningful factual disputes for trial and that you deserve to win. Undue influence and particularly the suspicion of undue influence, grow in the shadows. Details of the type of vulnerability experienced by the victim, Details surrounding the special relationship between the victim and the other party, The specific acts done by the other party that took advantage of that special relationship and vulnerable status of the victim, Particular aspects of the transaction that make it unusual or suspect, Admit or deny each allegation in the petition, Open a heading for affirmative defenses, separating the defenses by number if you have more than one. Along with challenges to capacity, the most common theory used to invalidate a will is undue influence. This can be by questions to parties or other potential witnesses, requests for production of documents and things, and/or requests for the other party to admit certain facts. 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. We know ads can be annoying, but they’re what allow us to make all of wikiHow available for free. Mediation/settlement conferences: Many courts encourage or require certain cases to attempt settlement prior to trial. The term "undue influence" merely means that the person lacked the free will to bargain because of the manipulator. The Supreme Court of Colorado elaborated on undue influence in the case of Ofstad v. Sarconi. In undue influence cases, the burden of proof is usually higher. Motions for summary judgment: This is where either the plaintiff or defendant attempts to convince the judge that there are no facts in dispute, and the judge only needs to rule on the legal issues. 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. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. Even someone who’s educated and careful regarding the efforts of strangers and healthcare providers could be blindsided by manipulation from those professing to care for and love them. Determine your legal posture. Proving Undue Influence Claim These facts will often tell a compelling story of undue influence—meaning they become important to your undue influence case. What must you prove to overturn a document based on undue influence? He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. Get a leading forensic neuropsychologist on your team and gain the edge your clients are looking for. 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. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. The victim received qualified, independent advice, such as from a third-party attorney or other professional. To construct a winning undue influence case, seek the advice of a reputable neuropsychology forensic expert as you consult a law firm and build your support counsel. A will kept secret from the victim’s relatives. 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. Actual undue influence, as the name suggests, requires proof that the transaction was entered into as a result of actual influence exerted. In fact, Undue Influence (UI) can exist in cases where the elder is clearly of “sound mind,” but is susceptible to Undue Influence because of other ailments, cognitive decline, dependency, and/or isolation. Vulnerability of the victim refers to the victim’s mental condition at the time the undue influence occurs. Your legal posture is whether you are have been sued (defendant) or are suing... 3. To win an undue influence case, you need evidence. We’ve talked here before about what one needs to prove to make out a case of undue influence in a will contest. The influence must be coercive or intimidating. (b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence. Her friend/contractor visited her at the hospital with some legal documents, including a power of attorney and a quitclaim deed. 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. Her sister contested the new will, raising concerns of UI. 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. This can best be accomplished by explaining the tactics used by the offending party to unduly influence the victim. Undue Influence is a legal construct that is defined in the, California Welfare and Institutions Code section 15610.70, By establishing that the victim was increasingly susceptible to undue influence and then outlining suspicious activities and exploitative tactics frequently used against the victim, attorneys can showcase an inequitable outcome designed to, 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. (2) The influencer’s apparent authority. Undue influence, or the persuasion of influence due to an interpersonal relationship, is seen often in businesses, regardless of sector or size. 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. This article has been viewed 18,813 times. If you win the motion for summary judgment, then … While undue influence cases are still somewhat of an uphill battle in California, following these guidelines and working with. After about 6 months, Ms. K. suffered a fall and was hospitalized for a broken hip. The most important key to winning is to understand the requirements for a valid will, and law of undue influence and lack of capacity in Florida, and to tailor the case so that the case complies with the requirements of the law. The impact of undue influence often extends beyond the monetary loss. Please help us continue to provide you with our trusted how-to guides and videos for free by whitelisting wikiHow on your ad blocker. To successfully prove 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. In this matter, a settlement was reached that favored her sister and the case did not go to trial. These tactics may include things like controlling the necessities of life for the victim like the use of a phone, coercion or intimidation, or implementing dramatic or inappropriate changes for the victim under the guise of expertise. When attempting to construct winning Undue Influence cases, it is vital to consult a well-educated and informed California neuropsychology forensic expert, such as Dr. Stacey Wood. The first method is by showing direct evidence … If you really can’t stand to see another ad again, then please consider supporting our work with a contribution to wikiHow. This article was co-authored by Clinton M. Sandvick, JD, PhD. In the practice of elder law, winning undue influence cases is an almost Herculean task. Taken together, Ms. K presented with increased environmental, psychological, and legal risk factors that supported a finding of UI. But at the same time, was described as lucid by neighbors. Dr. Stacey Wood, Ph.D. 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. Mild cognitive impairment, physical disability, declining health, and social isolation, increased her susceptibility to UI. By establishing that the victim was increasingly susceptible to undue influence and then outlining suspicious activities and exploitative tactics frequently used against the victim, attorneys can showcase an inequitable outcome designed to defraud the victim through undue influence. If you are suing to void a contract or contest a will, you will plead undue influence in your petition, which is an offensive maneuver. In regular civil cases, the burden of proof is by a preponderance of the evidence, that something was … Proving undue influence in contract law can be complicated, as it is often perpetrated by close family members to the senior. wikiHow is where trusted research and expert knowledge come together. Mental or physical illness of the victim. Professor, Psychology; Licensed Clinical Psychologist, CA. (B) Use of affection, intimidation, or coercion. Undue influence is more than just persuading someone to write their will a certain way. 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