As people grow older, they may experience a decline in mental competence, leaving them vulnerable to elder financial abuse. One of the main tactics bad actors use to financially abuse elders is undue influence.
Take the example of an adult child who moves into the home of his dying mother after learning he’s been excluded from her will. He claims he’s there to provide her care and support, but his intention actually is to grow closer to her so he can apply pressure on her to visit her estate planning attorney and make him the sole beneficiary of her will. His mother eventually succumbs to the pressure and does what he asks, even though her original intention had been for her assets to be distributed equally among all of her children.
As another example, consider a live-in caretaker who notices her employer showing symptoms of dementia. Instead of notifying his physicians or family, she begins to isolate him from everyone he knows. After convincing him that she’s the only one who cares about him, she starts to constantly pressure him to sign a deed conveying his home to her. Believing her lies, her employer proceeds to sign over his home, even though he’d previously promised it to his grandchild.
In both of the aforementioned examples, a vulnerable person, as a result of undue influence, was convinced to act against their own free will to fulfill the desires of a bad actor. While anyone can be unduly influenced, victims generally are people who are elderly, or have mental or physical disabilities, since they tend to be less capable of protecting themselves against undue influence or detecting when it’s being used on them.
If you are interested in finding out how to protect someone you love against undue influence, or learning about legal remedies that can be used to reverse the damage caused as a result of it, consider discussing your case with a qualified undue influence attorney. It’s also a good idea to speak with an attorney if you’ve been wrongfully accused of unduly influencing someone to learn what you can do to defend yourself.
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Undue Influence Definition
According to Probate Code section 86 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.”
The California Supreme Court has also defined undue influence, which it described as:
“ … pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency” (Rice v. Clark (2002) 28 Cal.4th 89, 96.
To put it simply, undue influence is an excessive or improper amount of pressure or control being used on someone to manipulate their decisions. Typically, the person being manipulated is more susceptible to undue influence due to mental or physical limitations.
While there are countless scenarios in which undue influence (also called undue pressure) may be prevalent (e.g., hostage situations, cults, domestic disputes, financial crimes), we will be focusing on the ways undue influence can appear in financial transactions, including probate-related matters. As an example, it can be used to convince someone to amend or revoke their estate plan or sign a legal document, such as a power of attorney or deed.
In many cases, undue influence won’t be discovered until after the victim dies, and the executor/administrator of their estate, trustee of their trust or their beneficiaries notice some of their assets to be missing or peculiarities within their will or trust. The good news is that even if a victim of undue influence has died, legal steps can be taken to reverse the damage the undue influence caused.
That said, undue influence can be difficult to prove without the help of a skilled attorney, even in instances where it’s obvious undue influence was behind a person’s decisions. This is because undue influence tends to be subtle and perpetrated behind closed doors.
In the same vein, unless a person has been declared by their physicians to be incapacitated, and they are under a conservatorship or have a power of attorney acting on their behalf as a result, they are entitled to use their assets in whatever way they wish, even if doing so would permanently compromise their finances.
As an example, if someone persuades an adult of sound mind to invest money in a business endeavor that ends up being a scam, it may be difficult to prove undue influence on account of the affected party not having lacked capacity when making that decision. That, however, does not mean steps can’t be taken to recover the money they invested.
Because of the complexities surrounding undue influence, California has laid out a set of conditions the courts will take into consideration in undue influence cases. Continue reading to find out what they are.
Elements of Undue Influence
Most people have succumbed to the influence of others at some point in their lives, but chances are that most of these instances did not involve undue influence. This is because the court generally will not regard a result as having been procured through undue influence unless the factors of undue influence, which are described in California Welfare and Institutions Code section 15610.70, tend to show that undue influence occurred.
The court will consider the following factors in undue influence cases:
- The vulnerability of the victim: Was the victim mentally or physically disabled? Were they emotionally distressed? Was their cognition impaired due to old age?
- The influencer’s apparent authority: Was the influencer a close family member? Was the influencer the victim’s attorney or financial adviser? Was the influencer a caretaker?
- The actions or tactics used by the influencer: Was the influencer withholding medical care from the victim? Was the influencer using coercion, intimidation or affection to get their way? Was the influencer secretly changing the personal or property rights of the victim through documents such as powers of attorney or deeds?
- The equity of the result: Was the victim financially harmed by the influencer’s tactics? Did the result divert from the victim’s original intent? Did the result fall short of what had been conveyed to the victim by the influencer?
It’s important to note that inequitable results alone will not suffice in proving undue influence; some of the other elements of undue influence also should be apparent. The ideal way to determine whether you have grounds to litigate on the basis of undue influence is to speak with an undue influence attorney about your case.
Who Has the Burden of Proof in Undue Influence Cases?
If a party has the burden of proof in an undue influence case, it means that in order to win in court, they will need to convince the judge or jury that undue influence either occurred or did not occur.
Generally, with undue influence, the burden of proof rests with the party claiming that a result was procured by undue influence. However, depending upon the relationship of the parties and the facts of a given case, a presumption of undue influence may apply, which effectively shifts the burden of proof to the alleged influencer, who will then bear the burden of proving the result was not procured by undue influence.
Presumption of Undue Influence in California
Presumptions of undue influence arise from both common law (i.e., the law that has developed through case law over time) or the California Probate Code itself.
Under the common law, a presumption of undue influence can apply anytime a person with a “confidential relationship” (i.e., a trusting relationship) with the victim actively obtains a result that benefits themselves at the expense of the victim.
Consider a case in which a victim’s best friend locates an estate planning attorney and instructs the attorney to draft an amendment to the victim’s trust that leaves everything to the friend. She then convinces the friend to execute the amendment under duress. In this case, the common law presumption of undue influence may apply, which would force the friend to have to prove that the amendment was not obtained by undue influence, if the amendment is challenged in court after the victim’s passing.
California Probate Code section 21380 also contains provisions that presume that gifts left to certain “disqualified persons” are the product of undue influence, subject to certain exceptions.
“Disqualified persons” can include:
- Drafters of instruments
- Transcribers of instruments
- Care custodians
When presumed undue influence is suspected, the burden of proof shifts to the alleged influencer. In other words, the influencer will have to prove they did not use undue influence to procure a particular result if the result is to stand and they are not to receive any penalties.
When disqualified persons don’t act in the best interests of the person they represent, their actions not only may be considered fiduciary misconduct, but they could lead to a presumption of undue influence if the victim acted in a way they otherwise would not have.
Undue Influence in Fact
If a presumption of undue influence does not apply, the burden of proof generally will rest with the party bringing the dispute. In other words, the person who filed the petition will have to prove to the court that the opposing party unduly influenced the victim in order to win their case.
At the same time, because elderly individuals are common victims of undue influence, California has taken a firmer stance on undue influence since 2014 with the adoption of Welfare and Institutions Code section 15610.70 and Probate Code section 86, which introduced the four-factor analysis for undue influence discussed above.
Prior to the change in the law, California arguably had two different definitions for “undue influence”— one in the Probate Code that specifically applied to testamentary documents and another in the Civil Code that had a more general application. The Appellate Court case of Lintz v. Lintz (2014) 222 Cal.App.4th 1346 eventually made clear that California was intending to create one uniform standard of undue influence with the introduction of Welfare and Institutions Code section 15610.70 and Probate Code section 86.
When defining elder financial abuse, California’s statutes now expressly include “undue influence, as defined in section 15610.70,” ensuring that all adults over the age of 65 can benefit from the protections and remedies in the elder abuse statutes if they have been subjected to undue influence.
What Makes Someone Vulnerable to an Undue Influence Threat?
As discussed in a previous section, one of the main factors the court considers in cases involving undue influence is the vulnerability of the victim.
There are many factors that can make a person more vulnerable than the average person to an undue influence threat. Continue reading to learn what these factors are.
Incapacity / Old Age
The majority of undue influence cases our firm handles involves victims who were incapacitated or elderly when the undue influence occurred. This is because incapacitated and elderly persons generally are not equipped to adequately protect themselves against or even detect undue influence threats.
Someone who is incapacitated is not of sound mind. In other words, they have impaired cognition. For example, someone with Alzheimer’s disease, a mental disability or severe mental illness (e.g., schizophrenia) may be regarded as being incapacitated.
In California, for purposes of elder financial abuse and undue influence actions, elders are regarded as persons who are aged 65 or older. While not all elders are incapacitated, it is not uncommon for their competence to start to decline as they reach the later stages of their lives, making it more difficult to protect themselves from the influence of bad actors.
The good news is that there are ways to protect your loved one if you believe they’re being unduly influenced. Some people even plan in advance for their potential incapacitation by executing an estate plan that names someone they trust to act on their behalf should it occur.
In a later section, we’ll review specific ways to protect elderly and incapacitated loved ones against undue influence.
Isolation From Family & Friends
When someone, especially an incapacitated or elderly person who previously was social, is suddenly isolating from their friends and family, it is a major red flag, because it’s possible they’re not isolating by choice.
It is common for undue influencers and other bad actors to isolate their victims in order to carry out their misdeeds. This way, no one is there to notice their suspicious behavior and stop it. It’s also common for bad actors to specifically target victims who already are isolated or lack community.
If you are the loved one of someone who could be vulnerable to undue influence, you may consider checking in on them more frequently, particularly if they have someone in their life, such as a caretaker or family member, who appears to intentionally be keeping them isolated from those who care about them.
Dependence
When a person’s physical, mental or emotional needs render them dependent on another person, it makes them more susceptible to undue influence.
As an example, if a person is bedridden due to severe illness, and is dependent on her partner to tend to her essential daily needs, that partner could manipulate her by withholding medication, food or even affection to make her amend their estate plan to include them.
While dependence doesn’t necessarily cause someone to be of unsound mind, it may cause them to be less capable of protecting themselves against an undue influence threat. If you have an adult loved one who is dependent on another person, keep a close eye on them to make sure they are not being unduly influenced or abused in some other way.
How Can You Protect Vulnerable Persons Against Undue Influence?
You do not have to sit idly by as your vulnerable loved one struggles to manage their life or finances, and protect themselves against the many threats looming over them, such as telemarketing and internet scams, opportunistic family and friends, and caretakers with ulterior motives. There are steps you can take to safeguard their finances and wellbeing.
What can be done to legally protect a loved one depends on whether or not they have capacity. If someone has capacity, they can sign a power of attorney to grant another person the ability to act on their behalf in medical or financial and legal matters should they become unable or unwilling to act in the future. If someone lacks capacity, the only way another person can act on their behalf is if they are appointed as their conservator.
We’ll explain powers of attorney and conservatorship in more detail in the following subsections.
Powers of Attorney
When a person has capacity (i.e., they are mentally competent), they can sign a document known as a power of attorney to empower another person to act on their behalf. While powers of attorney can serve a wide variety of purposes, many people specifically use them to appoint someone they trust to manage their affairs should they lose capacity in the future.
No one other than the person signing the power of attorney (called the principal) can enact a power of attorney, so if you are hoping to become your parent’s or another loved one’s attorney-in-fact, your parents will have to sign a power of attorney that names you as the attorney-in-fact while they still have capacity. If a person loses capacity and then proceeds to sign a power of attorney, the document could be challenged and subsequently invalidated.
Powers of attorney fall under one of two broad categories. There are health care powers of attorney and general powers of attorney. The former grants the attorney-in-fact the authority to act on behalf of the principal in medical matters, whereas the latter grants the attorney-in-fact the authority to act on behalf of the principal in financial and legal matters.
Powers of attorney can also take effect at different times. Durable powers of attorney take effect upon signing and remain in effect until they are revoked or the principal dies. Springing powers of attorney take effect upon the principal’s incapacitation, but this will not happen automatically. The principal’s physicians will need to confirm the principal’s incapacitation to the court in order for the attorney-in-fact to act.
Powers of attorney can be beneficial because they empower the principal to select the person they want to be in charge of their lives, but they can also go very wrong. For example, a person could be convinced by a bad actor to sign a power of attorney that would allow them access to all of their finances. Or, an attorney-in-fact could continue using their powers of attorney after the principal has died to misappropriate their assets, even though all powers of attorney expire upon the death of the principal.
Selecting a trustworthy attorney-in-fact is crucial in ensuring the power of attorney does more good than harm. That said, if a power of attorney is not working out as planned (e.g., an attorney-in-fact is failing to fulfill their power of attorney obligations), and you still have capacity, you can always revoke it and bring a power of attorney abuse claim against your former attorney-in-fact to try to recover the assets that were lost to the abuse, and maybe even damages.
If you’re the loved one of an incapacitated principal and notice their attorney-in-fact to be abusing their authority (e.g., your sibling is abusing their power of attorney to steal from your parent), you generally will have the ability to bring a claim to have the power of attorney revoked by the court. In the same vein, an executor/administrator, trustee or interested party can bring a power of attorney abuse claim against a former attorney-in-fact if it comes to light during estate or trust administration that they had been stealing from the deceased principal before or after their death.
When dealing with possible power of attorney abuse, it is best to work with a probate attorney, who can investigate your case and take the appropriate steps to resolve the issue.
Conservatorship
Once a person has lost capacity, the only option remaining to protect their finances and person is conservatorship, a type of court proceeding in which a competent adult is appointed to manage the financial and/or personal affairs of an adult who is no longer competent.
Conservatorship generally falls under one of two categories: conservatorship of the person or conservatorship of the estate. The former allows the appointee (called a conservator) to manage the personal affairs (e.g., health care, essential daily needs) of the incapacitated person (called a conservatee), whereas the latter allows the conservator to manage the financial affairs of the conservatee.
There is general conservatorship, which usually is established for incapacitated adults, or limited conservatorship, which usually is reserved for adults with developmental disabilities who are able to manage some aspects of their lives on their own, but require assistance when making important decisions. Temporary conservatorship also is available for emergency situations in which the conservatee may be at risk of being harmed if they are not immediately placed under conservatorship.
To establish conservatorship over a loved one, you will need to prove your loved one is incapacitated through medical documentation and possibly even statements from their physicians and testimony from those who are close to them.
Because conservatorship significantly limits the conservatee’s rights, the court will do its due diligence to confirm the proposed conservatee’s incapacity before granting it. It also will need to be shown to the court that no less-restrictive alternatives to conservatorship will suffice in protecting the conservatee.
A probate attorney can help you navigate the conservatorship process, whether you need their help deciding between general and limited conservatorship, determining whether your case meets the qualifications for temporary conservatorship, or establishing conservatorship. Keep in mind that the proposed conservatee or their loved ones have the ability to contest the proposed conservatorship, so it is best to have a lawyer on your team to make arguments on your behalf should doing so become necessary.
Under What Circumstances Can Undue Influence Occur?
As previously mentioned, there are countless scenarios in which undue influence can appear, but for the purpose of this article, we’ll be focusing on the ways in which undue influence appears in financial transactions, including probate-related matters.
Undue influence in this context generally falls under the scope of one or more of these categories: wills and trusts, property disputes and contract law. We’ll delve more into each of these categories in the next few subsections.
Undue Influence in Wills & Trusts
Wills and trusts are supposed to be statements of their creators’ final intentions surrounding their assets. Unfortunately, this sometimes ends up not being the case because someone unduly influenced them to make changes to these documents or revoke them.
As an example, it could come to light after a decedent dies that her surviving spouse had been withholding care and affection from her until she agreed to disinherit all trust beneficiaries but him from her trust.
There also could be suspicious circumstances at play. Perhaps a decedent made drastic changes to their will from their deathbed.
When someone unduly influences the creator of a will (called a testator) or the creator of a trust (called a settlor, grantor or trustor) to amend one or more of their estate planning documents, it usually is because they’ve been excluded from the documents in question or will not be receiving as large of an inheritance as they’d hoped.
When someone unduly influences a testator or settlor to revoke their estate planning documents, it’s generally because they are an heir who would receive a larger inheritance under the laws of intestate succession than under the estate planning documents.
If it is apparent that someone had unduly influenced a decedent to create, amend or revoke their will or trust, legal action should be taken by either the executor or trustee (depending on whether the will or trust was affected) or interested parties, such as beneficiaries and heirs, to contest the problematic document. Remember that there are deadlines for bringing a will or trust contest, so it is important not to delay filing the necessary petitions.
Undue influence in wills and trusts is one of the most common grounds for bringing a contest, but proving that it occurred can be complicated. If you plan to contest a will or contest a trust, it is recommended you hire a qualified probate attorney to help you with the process. Having an attorney in your corner not only will ensure you stay on top of deadlines, but it will also be beneficial in terms of filing the necessary petitions and presenting arguments to the court.
Undue Influence in Property Disputes
Another way undue influence can appear in probate matters is when a vulnerable person is pressured into giving away their money or transferring property to someone other than whom they had intended to leave the assets.
As an example, perhaps a dying elder has a substantial amount of money he wished to leave his loved ones in his trust, but his financial adviser instead pressured him to invest the money in his own business endeavor by claiming it would provide a steady stream of income to the elder’s survivors long after his death. The adviser did not position the investment as a risk, even though it was. After the elder dies, it comes to light that the money the decedent invested is lost for good.
As another example of undue influence in property disputes, perhaps the caretaker of an elder was withholding medication from the elder until she agreed to sign a deed transferring property to her. In this example, undue influence occurred in the conveyance of the deed.
When someone’s undue influence leads to property being improperly or wrongfully taken, a property dispute can be brought on that ground. Keep in mind that recovering property that was improperly or wrongfully taken can be a challenge, especially if the victim had not lacked capacity at the time they gave it away, so it is best to work with a lawyer if you have a property dispute on your hands. Your lawyer may even be able to use a procedure known as an 850 petition to start the process.
Undue Influence in Contract Law
When undue influence is used to convince someone to sign, refrain from signing, change or revoke a legal contract, a dispute can be brought to try to have the contract either invalidated or executed (depending on the result procured by the influencer) by the court.
As an example, perhaps a person who was starting to lose capacity was convinced by a friend to sign a power of attorney so she could help him manage his finances, but all along, the friend’s true intention had been to siphon money from his bank accounts. In this example, undue influence occurred in the signing of a power of attorney document.
Here, undue influence led to inequitable results and the victim acting against their own best interests for someone else’s personal gain. It also demonstrates a scenario in which the burden of proof may rest with the influencer rather than the party bringing the dispute, since the alleged influencer was a fiduciary who was supposed to act in the best interests of the person they had been representing, but instead, actively procured a benefit for themselves at the victim’s expense.
Can You Sue for Undue Influence?
If you suspect undue influence, it is an act for which you may be able to sue the alleged influencer. That said, you first will have to make sure your case meets the criteria for undue influence (which we discussed in a prior section) and then check whether you have standing to bring a dispute based on undue influence.
To determine whether you have standing to bring a dispute on the basis of undue influence, you will need to consider the capacity of the victim and your relation to them.
If the victim has capacity, only they can litigate against the alleged influencer, but it may be difficult to prove undue influence since one of the main factors the court considers in undue influence cases is the vulnerability of the victim. That said, it is not the only factor the court considers, so before jumping to any conclusions about whether or not you have a viable case, it is recommended you speak with a lawyer. Furthermore, even if undue influence can’t be proven, you still may be able to recover the money or property you lost.
If the victim lacked capacity when the undue influence occurred, and they had previously signed a power of attorney, then their attorney-in-fact (given that they are not the perpetrator and were appointed prior to the principal losing capacity) can litigate on their behalf. If the victim doesn’t have an attorney-in-fact, a conservator can litigate on their behalf, but one may need to be appointed first if they don’t already have one.
If the victim of undue influence is deceased, then there are several parties who may be able to litigate on their behalf. The most obvious choice would be either the executor/administrator of their estate or the trustee of their trust, but interested parties (e.g., beneficiaries, heirs and possibly creditors) may be able to litigate on behalf of the deceased as well.
An undue influence attorney can help you determine your standing to litigate, as well as evaluate your case to determine whether undue influence had occurred.
Potential Outcomes of Undue Influence Cases
If you have determined that you have an undue influence case on your hands as well as standing to litigate, then it’s important you become clear on the outcome you are desiring.
For example, if you were disinherited from your parent’s will because of a sibling’s undue influence, you may wish for the will to revert to its original version. In the same vein, if a deed procured through undue influence led to your not inheriting a relative’s home, you may wish for the deed to be invalidated so the home can be disposed of according to the terms of the will (since valid deeds generally supersede estate planning documents).
Continue reading to learn about the most common outcomes of undue influence cases. Keep in mind that undue influence cases may result in more than one of these outcomes. For example, if it’s proven that an estate beneficiary unduly influenced the decedent to change their will so they would receive a larger inheritance, the amended portion of the will (called a codicil) not only may be invalidated, but the beneficiary could be disinherited as well.
Voiding of a Will or Trust
If a will or trust was created, changed or revoked due to undue influence, a valid reason exists for contesting the document.
When a will or trust contest is brought and it is successful, the will or trust will be invalidated by the court, causing the assets mentioned in the document to either be distributed in accordance with a prior version of the document (if one existed) or intestate succession laws.
When a will or trust was revoked as a result of undue influence or one or more of the other grounds for contesting a will or trust, and this is effectively proven to the court, the revoked will or revoked trust will be reinstated.
Voiding of Contract
If a contract was signed, changed or revoked as a result of undue influence, and this can be proven, the court generally will reverse the result caused by the undue influence. For example, if the victim transferred title to property because of undue influence, the court may proceed to reverse the transfer and void the subject deed.
When a contract is invalidated due to undue influence, it either will be completely voided or reinstated to its original form (i.e., the state it was in before the undue influence occurred), depending on the circumstances of the case.
Disinheritance
If the influencer in an undue influence case stands to receive an inheritance from their victim’s estate or trust, they may lose their entitlement to that inheritance if the opposing party is successful in proving that undue influence occurred. It should, however, be mentioned that a full disinheritance won’t always be the outcome.
For example, if an undue influence case is settled outside of court at mediation, the outcome could be a compromise providing for the alleged influencer, who also was a beneficiary, to receive a portion of their inheritance in exchange for waiving their interest in other property.
If you have been accused of unduly influencing a decedent, it’s crucial you work with an attorney who can defend you, because failing to do so could leave you with no inheritance or worse. For instance, you could also be ordered to pay the opposing side’s attorney’s fees and costs.
Recovery of Assets & Damages
If specific assets were lost as a result of undue influence, and the undue influence is successfully proven, the court may order for the assets to be returned either to their owner (if they are alive) or their estate or trust (if they are deceased).
In some cases, the influencer may even be ordered to pay damages. For example, if they unduly influenced an elderly victim to transfer property into their name, the influencer may not only be ordered to return the property, but they could also have to pay double or treble (i.e., triple) damages, and possibly even punitive damages.
If you are bringing an undue influence case because assets were improperly or wrongfully taken, it is crucial you work with an undue influence lawyer to ensure the misappropriated assets are successfully recovered, and you receive the maximum possible damages. If you are defending an undue influence case, it’s crucial you work with a lawyer as well, because if the case is successfully proven, you could end up paying handsomely for your alleged misdeed.
It’s worth noting that in all undue influence cases, there’s always the possibility the influencer will have to reimburse the opposing party’s attorney’s fees and costs.
About Undue Influence
If you still have undue influence questions, they may be answered in our FAQs below. In the event you are still unable to find the answers you’re looking for, don’t hesitate to reach out to request a free consultation.
Is undue influence elder abuse?
Undue influence can be a form of elder abuse if the victim is aged 65 or older, but it does not have to be.
As we previously discussed, undue influence can occur in a wide variety of situations; it does not have to involve elders. For example, a cult leader could unduly influence emotionally distressed young people into handing over all their savings to him.
Is undue influence a crime?
Undue influence itself is not a crime, but it can be used in the commission of a crime.
For example, someone could unduly influence a vulnerable person to sign a power of attorney that they later use to steal from the principal’s bank accounts, which would technically be considered a crime.
What is the statute of limitations for undue influence in California?
There is no specific statute of limitations for undue influence in California, because how long you have to bring a dispute on the basis of undue influence will depend on the type of dispute you are bringing.
As an example, if you are bringing a will contest because you suspect undue influence was involved in the drafting of the will, then you will 120 days from the date probate is opened to dispute the will. If, on the other hand, you are bringing a financial elder abuse claim predicated on undue influence, the statute of limitations may be four years.
With any undue influence case, it is best to take action as soon as you suspect wrongdoing. Arranging a consultation with a qualified probate attorney is a good place to start, as they will be able to inform you about important deadlines and next steps.
Is it necessary to hire an undue influence attorney?
While it is not necessary to hire an undue influence attorney to litigate a case involving undue influence, you may not secure the results you want without one.
Because of the subjective nature of undue influence, it can be difficult to prove, especially if you are not a legal professional and are going about it on your own.
The definition of undue influence can in itself be confusing because it requires for there to have been “excessive persuasion.” What one person finds excessive may be completely different from what another person finds excessive.
For example, if the adult child of an elderly person phones their parent a few times to ask them to create a will that names them and their children as beneficiaries, would that be considered excessive or would it merely be seen as a reminder?
An undue influence attorney will be able to listen to the details of your case to determine whether undue influence may have occurred, and if it did, present your case effectively to the court.
Who are the most common perpetrators of undue influence?
Undue influence is most commonly perpetrated by the people who are closest to and have the most access to the victim. This can include their caretakers, family members, friends, business partners and fiduciaries.
That said, undue influence can also be perpetrated by third parties, such as telemarketers and internet scammers. Of course, if the undue influencers are anonymous third parties, it could be more of a challenge to hold them legally accountable, though it is not impossible.
Are undue influence and duress the same?
Undue influence and duress are not the same; there are significant differences between undue influence and duress.
Undue influence occurs when excessive persuasion or manipulation is used to cause a person to override their own free will.
Duress occurs when unlawful threats or coercion are used to drive a person to act against their own free will.
In sum, duress is more forceful than undue influence, and in some cases, may even be considered a crime.
Do you have an undue influence case on your hands? We can help.
It’s a shame that vulnerable persons are frequently taken advantage of through undue influence. Luckily, our skilled team of probate attorneys deals with undue influence cases on a daily basis and can help bring bad actors to justice.
Whether you are a victim of undue influence, your loved one is a victim or the victim has died, we can help you recover any assets that were lost as a result of undue influence or invalidate any estate planning documents or contracts that were signed because of it.
We also defend those who have been wrongfully accused of unduly influencing another person.
Call us to learn how we can help you. Request a free consultation today.
