Have you witnessed a situation in which someone was using affection, isolation or other manipulative tactics to persuade another person to transfer or gift property to them, or add them to their will or trust?
Although undue influence has a lot in common with duress, there are important differences between the two concepts. While both are methods of manipulating someone for financial or personal gain, they are not treated the same by the court.
Learn more about the concepts of undue influence and duress, including their signs, how to prove that they occurred and the subtle ways in which they’re different.
Undue Influence and Duress Definitions
Understanding the definitions of duress and undue influence will help you to identify whether you or a loved one had been subject to one of these control tactics.
The following sections delve into the meanings of duress and undue influence.
What Is Undue Influence?
When someone excessively pressures a vulnerable person to the extent they’re no longer acting on their own free will, and the result is inequity, it may be considered undue influence.
This type of manipulation is one of the accepted grounds for contesting a will or trust, and other types of contracts. Undue influence also can be used as a ground for recovering property that was wrongfully transferred to a bad actor as a result of it.
Undue influence can be difficult to detect, as secrecy tends to be a major part of it. In most instances, the influencer will go to great lengths to isolate their victim from their friends and family members to pressure them into doing their bidding.
Whether they manipulate their victim through affection, extreme persuasion, or by withholding attention and medical care, undue influence can have devastating effects. It not only can take a toll on the victim’s general wellbeing and finances, but it can derail their estate plan as well.
What Is Duress?
There is a key factor that sets duress apart from undue influence: serious threats made against the victim, such as blackmail or physical violence. While undue influence can have a negative effect on the victim, it’s rarely as damaging as duress.
Duress is a type of undue influence, but it generally is more extreme. Whereas undue influence generally involves subtle manipulation and control tactics, duress usually involves express threats or other aggressive actions.
According to the law, being under duress negates consent. This means that if someone signs a will or trust under duress, they did not do so voluntarily. This would render the document invalid in the eyes of the court.
For an action (e.g., the amending of a will or trust) to be regarded as having been procured through duress in the context of probate, a specific threat must be involved. Additionally, the bad actor should either have financially benefitted from the duress they inflicted or stand to financially benefit from it in the future.
A prime example of duress would be a son who threatens to expose family secrets that could harm his parents’ reputation within their community so they will change their will to make him the sole beneficiary.
Duress vs Undue Influence: Understanding the Differences
Although undue influence is like duress, in that they’re both manipulation tactics, it’s worth taking the time to understand the differences between the two.
The best way to understand the differences is to compare the four elements of undue influence with the four elements of duress.
Are the Elements of Duress and Undue Influence the Same?
It’s one thing to suspect that a loved one was unduly influenced or placed under duress when they took a particular action, but it’s another thing to successfully prove it. Vague suspicions aren’t enough — for success in court, you will have to prove each of the elements of duress or undue influence. If even one element is absent, your claim of undue influence or duress generally won’t be proven.
Review the elements of duress and undue influence in the sections below to find out whether your case meets the grounds for invalidating a contract, transfer of property or gift on the basis of one or both of these manipulation tactics.
Elements of Duress
It can be a challenge to prove that a person was under duress when taking a particular action, but with the help of an experienced probate attorney, the process can be made easier. Below are the elements of duress you’ll have to prove to achieve a favorable result in your case.
Contract Was Signed Under Serious Threat of Unlawful Action
To prove that someone was under duress when performing a particular action, a serious threat should have been posed. To determine whether a serious threat had been posed, you may want to consider whether a rational person would have felt an extreme amount of pressure to sign a contract in the same situation.
For example, if the threat posed could rip apart the victim’s family or cause the victim to face serious financial or legal consequences, then the amount of pressure likely was extreme. If the threat posed would have temporarily embarrassed the victim, the amount of pressure likely was not extreme.
The more evidence you have, the better. At the same time, if you don’t have evidence, but are certain that you or someone you know had been seriously threatened, then your attorney can help you track down the evidence you need to prove it.
If you suspect that a loved one is or previously had been under duress, these steps may be useful for proving a threat of bodily harm:
- Document changes in the victim’s behavior, especially around the alleged perpetrator.
- Gather detailed accounts of intense or aggressive exchanges between the alleged perpetrator and victim.
Victim Would Not Have Signed Contract if Threat Did Not Exist
If the victim acted against their own best interests or prior intentions when signing a contract, it’s likely they signed the contract not as a result of their own free will, but as a result of someone else’s threats or coercion.
For example, if someone threatens a victim with destruction of their home so they will amend their trust to name them as the sole beneficiary and trustee, chances are any resulting amendments to the victim’s trust will have been executed because of the threat posed, not because the victim had intended to execute these amendments.
In most instances, the contract itself will be sufficient in proving this element of duress. For instance, if the alleged perpetrator is not included in the prior version of the victim’s trust, it likely will confirm that it had not been the victim’s intention to name the perpetrator as the sole beneficiary and trustee of their trust.
No Reasonable Alternatives Existed for the Victim Besides Signing Contract
For a contract to be invalidated on account of duress, there should have been no reasonable alternatives for the victim besides signing the contract.
For example, if a perpetrator threatened a victim with physical harm so they would agree to convey a deed transferring their home to them, but they gave the victim a day to complete the deed transfer, then a reasonable alternative for the victim would have been to report the threat to authorities and stay away from their residence — which would mean the situation likely would not qualify as duress.
However, if the perpetrator of duress stayed with the victim until they could complete the deed transfer, then this condition of duress would be met, since no reasonable alternatives would have existed for the victim.
Victim Became Involved in Situation Through No Fault of Their Own
The last element of duress requires for the victim to have entered the threatening situation through no fault of their own.
For example, if someone was blackmailed by another person to sign a beneficiary designation form, but they had voluntarily participated in criminal activity that provided the blackmailer with the ammo to threaten them, then it could be argued that the situation does not qualify as duress, since that person’s own activities gave rise to the threat.
Elements of Undue Influence
Undue influence is subtler than duress, so much so that victims may not even know they are being unduly influenced. It also can be challenging to prove that the amount of influence that was exerted was “undue,” as there is nothing in the law to forbid someone from using normal persuasion tactics on another person to obtain a particular result.
Because of the subjective nature of undue influence, California has listed four specific elements in Probate Code section 86 that are needed to prove undue influence. Learn about each of these elements from the sections below.
The Vulnerability of Victim
To prove undue influence, it must be demonstrated to the court that the victim was more susceptible than average to undue influence. This can be because of old age, declining competence, limited mobility, or any other condition that could make it difficult for the victim to make sound decisions or protect themselves and their finances.
Proving vulnerability in an undue influence case may involve gathering documentation from the victim’s medical providers, as well as their testimony. It may also require having the victim evaluated for possible incapacity if they are still alive.
If the victim has died, it may not be as easy to prove their vulnerability, particularly if they were not seniors when the undue influence took place. In most cases, however, undue influence victims are elderly, and a medical expert can weigh in on their vulnerability to undue influence post-death by reviewing the decedent’s medical records in or around the time the dispute action took place.
Still, you will need to prove the other three elements of undue influence in order to win your undue influence case.
The Apparent Authority of the Influencer
The next element required to prove undue influence is the apparent authority of the influencer. For example, the adult son of an elderly parent could be seen as having authority over their parent because of the nature of their familial relationship.
People who may have authority over undue influence victims include:
- Caregivers
- Family members
- Fiduciaries (e.g., accountants, doctors, financial advisers and lawyers)
The categories of persons listed above are common perpetrators of undue influence because of the close relationship they have with the victim. It would be difficult to prove undue influence without establishing that the victim trusted the influencer enough to be swayed by them.
The Overt Tactics of the Influencer
To prove undue influence in court, you’ll have to show that overt manipulation tactics were used on the victim to achieve a particular result. These tactics can vary greatly, ranging from affection to intimidation, but excessive persuasion should be at the root of all of them.
The evidence needed to prove this element can vary based on whether or not the victim is alive.
If they are alive, they potentially could testify on their own behalf (if they have capacity) about the tactics, such as isolation and affection, the influencer used on them. If they have died, it can be more difficult to prove undue influence because direct evidence and testimony concerning the abuser’s tactics may not be available, and you may need to rely on circumstantial evidence to prove your case.
The Inequity of the Result
The final element required to prove undue influence is an inequitable result. In other words, the result must favor the influencer or others in the influencer’s life over the victim and their loved ones.
In a probate context, inequitable results can entail the victim changing their estate plan so that it favors the influencer rather than the beneficiaries they’d originally intended to inherit their assets. The departure from established intent is a factor the court will consider in its analysis.
The court will also consider whether the decedent’s new estate plan provides for an “unnatural disposition” (i.e., the estate plan benefits people with a tangential relationship to the decedent at the expense of those who are close to the decedent). For example, if an estate plan disinherits the decedent’s own children in favor of a caregiver, the estate plan may be regarded as providing for an unnatural disposition. Compared to the other elements of undue influence, it generally is easier to prove the inequity of the result, since the inequity of the result is likely what alerted you to the possibility of undue influence in the first place.
With that being said, unequal results on their own are not sufficient in proving undue influence. The other elements of undue influence also should apply. Remember that an experienced probate attorney can help you gather the evidence you need for a favorable result if you decide to pursue your case.
Are the Signs of Duress and Undue Influence the Same?
Because of how similar undue influence and duress are in the context of contract law, the signs of each are not that different.
Explore the following signs of duress and undue influence to better understand what to look for if you suspect your loved one may have been affected by either:
- Your loved one is acting out of character, or there are changes in their mood.
- Your loved one is being kept isolated by someone.
- Someone has suddenly taken an interest in your loved one when they showed no interest in them before. There are abrupt changes to your loved one’s financial status, estate plan or contracts.
- The victim made transfers of property to someone unexpected.
Remember that the signs of duress and undue influence can be difficult to spot, especially if your loved one isn’t actively talking about the problem or you don’t have access to their financial documents or estate plan. While there usually isn’t a need to raise the alarm if you notice one sign of undue influence or duress, it can be helpful to investigate the matter further to ensure nothing suspicious is happening behind the scenes.
If you have an elderly loved one who is alive, taking an active interest in their life can go a long way in preventing undue influence and duress, and in detecting whether either tactic is being used on them.
Are the Consequences for Duress and Undue Influence the Same?
If it’s successfully proven to the court that undue influence or duress played a role in the manipulator securing a particular result, there likely will be consequences, which can vary based on the nature and severity of the tactics used.
The consequences generally will be decided by factors such as the duration of the elder financial abuse, and the financial, physical and emotional harm experienced by the victim as a result of it.
Continue reading to learn more about the potential consequences of duress and undue influence.
Consequences of Duress
Depending on the severity of the threat posed, duress may be considered a misdemeanor or felony offense in California. The probate court, however, is concerned not with the crime of duress, but with determining whether a particular result (e.g., the creation or revocation of a will or trust) was obtained through duress.
If duress is proven, the court likely will reverse the result obtained through duress. As an example, if duress was used to coerce a victim into deeding their home to the person who placed them under duress, then the deed generally will be voided by the court. The perpetrator could also be disinherited.
If the losses suffered by the victim of duress were severe, the court may order the perpetrator to pay the victim (or their estate or trust) damages and possibly even punitive damages, as well as cover their attorney fees and costs. If the abuser had been a fiduciary (e.g., a trustee or power of attorney), they could be removed from their position and surcharged.
Prosecutors could potentially bring criminal charges against the alleged perpetrator of duress, but it is rare for this to happen, unless threats of violence or bodily harm were involved, or a substantial amount of money or property was taken.
Consequences of Undue Influence
While undue influence is usually less severe than duress in terms of the tactics used and the effect it had on the victim, the consequences of it are similar in a probate context.
If undue influence is proven, the court likely will reverse the result that was obtained through undue influence. For example, if a trust amendment was executed because of undue influence, and this resulted in a trust contest, the court generally would invalidate the amendment. The influencer also could be disinherited.
Depending on the severity of the undue influence, the court may order the perpetrator to pay damages and possibly even punitive damages to the victim (or their estate or trust) and their attorney fees and costs. If the victim’s fiduciary was the perpetrator, they could be removed and surcharged as well.
While it isn’t a crime per se, undue influence can be used in the commission of a crime. For example, if a person uses undue influence to steal from their victim, they could be criminally charged for theft, but not for undue influence.
Who Is Most Vulnerable to Duress and Undue Influence?
One of the main factors that can make a person especially susceptible to undue influence or duress is their vulnerability. Discover why elderly, incapacitated, and dependent adults are more vulnerable than most to the manipulation of bad actors.
The Elderly
There are several reasons why elderly adults are prime targets for manipulative bad actors.
First, people of an advanced age may have substantial assets to leave behind, so bad actors may see an opportunity to convince or coerce them into making changes to their estate plan that would favor them.
The elderly also may lack mental competence, social connections and mobility — all of which could contribute to their vulnerability.
Incapacitated Adults
Whether through advanced age, an accident that results in a serious injury, or a cognitive disability, such as dementia, adults may become temporarily or permanently incapacitated. In other words, they may reach a point where they can no longer make sound decisions for themselves or protect themselves against the manipulation and control of others.
It’s common for incapacitated adults to have live-in caregivers, who potentially could take advantage of their access to the victim and close relationship with them to manipulate them for personal gain.
Dependent Adults
Some adults are dependent on medical staff, caregivers or family members to have their essential needs met. They typically are more vulnerable to undue influence and duress than the average person because they not only lack control over their own life, but they may lack mobility and be isolated from family and friends. Additionally, since they are required to rely on others, they may have trusting personalities.
It is common for dependent adults to allow those who are close to them to access their bank accounts, important documents and other personal information, since they often don’t have the capacity to handle financial tasks on their own — which also contributes to their vulnerability. While most fiduciaries and caregivers are trustworthy, some aren’t, and they could have unrestricted access to the finances of vulnerable people under their care. For these reasons, it’s best to play an active role in the life of your dependent loved one to ensure no one is exploiting them for personal gain.
Accounting Disputes
Accounting is a crucial part of administration. Once an executor or administrator is officially appointed to their role, they will begin the process of marshaling estate assets. Later, they will create an inventory of the assets and their value at the time of the decedent’s death. Executors and administrators must include such information in the formal accountings they are required to provide beneficiaries and heirs periodically.
Beneficiaries and heirs should carefully inspect the accountings they have been provided for red flags. If certain aspects of an estate accounting seem incorrect or suspicious, it may be necessary to dispute it with help from an estate attorney. Los Angeles residents can turn to Keystone to inspect accountings, and if necessary, challenge them in court. Executors and administrators also can turn to Keystone to help prepare accountings and defend any accountings that are being disputed.
Removal and Surcharge
When an executor or administrator fails to be diligent and/or ethical in carrying out the duties of their role, a petition can be brought to try to remove and surcharge them. Perhaps the executor or administrator sold estate property for below fair market value. Perhaps the executor or administrator is making unilateral decisions that are financially harming the estate without notifying beneficiaries. Perhaps the executor or administrator has been using estate funds for personal gain. These are all reasons to hire a Los Angeles estate attorney to petition the court to have the executor or administrator removed and potentially surcharged.
Because the person who has been appointed as the executor was generally named by the decedent in their will, the court will try to uphold the decedent’s wishes and keep them in their role unless blatant misconduct is proven or the estate will be subject to immediate harm if removal is not granted. Needless to say, removing and surcharging an executor or administrator can be challenging, so it is best to bring this kind of petition with help from a skilled Los Angeles estate lawyer.
Elder Financial Abuse
Much Los Angeles estate litigation involves elder financial abuse. When a person grows old and starts to lose competence, they become more vulnerable to financial exploitation. Unfortunately, elder financial abuse frequently goes undetected during a person’s lifetime and only comes to light after they have died. One of the most common ways this type of abuse manifests is through a decedent’s estate plan. Perhaps they drastically changed it at someone’s urging, or they were defrauded out of large sums of money, which substantially decreased the value of their estate. When financial abuse is evident, the best option is to turn to a Los Angeles estate lawyer, who can help investigate the claim.
Financial elder abuse claims can be tough to prove considering that much of the time, the elder is not around to testify to the abuse; therefore, they tend to be most successful when litigated by an experienced Los Angeles estate lawyer. A successful claim can mean recovering the property that was lost, as well as damages.
Spouses, Children and Unmarried Couples
California is a community property state, which means the surviving spouse of a decedent is usually guaranteed half of all property acquired over the course of a marriage regardless of which spouse acquired it. If the spouse of a decedent does not stand to receive at least half of all community property, it is crucial they speak with a Los Angeles estate attorney about their rights. A Los Angeles estate attorney will have a breadth of knowledge surrounding California’s marital property laws.
Unlike spouses, who may have community property rights to the assets, children and unmarried couples are not automatically guaranteed an inheritance, although they are certainly permitted to fight for one if they believe they are entitled to a share of the estate. Because the laws governing the inheritances of children and unmarried couples are a little more complex than those governing the inheritances of surviving spouses, children and unmarried couples will want to consult with an experienced Los Angeles estate lawyer if they wish to enforce their inheritance rights.
How Can a Probate Attorney Help Resolve Your Concerns?
If you suspect that a loved one was placed under duress or unduly influenced to execute a contract or transfer property, you will need to prove your suspicions to the court in order to have the result reversed.
Remember that the burden of proof in undue influence and duress cases generally will rest with the party bringing the lawsuit (with some exceptions), so you will want to have a skilled team of attorneys in your corner to make arguments on your behalf and prove your claim.
An Attorney Can Help You Determine Whether Undue Influence or Duress Took Place
Undue influence and duress consist of different elements. For example, undue influence involves excessive persuasion, whereas duress involves serious threats.
In order to successfully prove that one of these manipulation tactics was used to obtain a specific result, you will need to understand which manipulation tactic you are dealing with — as the evidence needed to prove the elements of undue influence generally will not be the same as the evidence needed to prove the elements duress.
A lawyer can help you determine which tactic was used to help you gather the most relevant and compelling evidence.
An Attorney Can Investigate Your Case
Any documentation you can track down to support your claim could help you secure the outcome you want in your case, but how will you know what to look for?
This is one way an attorney can be a valuable addition to your team. An attorney can help you obtain the evidence you’ll need to prove your claim and help you present it to the court.
An Attorney Can Litigate on Your Behalf in Court
Unless you have extensive legal experience, you’ll want a lawyer to litigate on your behalf in court.
A trust and estate attorney will understand the rules of the courtroom, as well as have legal strategies up their sleeves to not only passionately argue your case but give you the strongest chance of a victory.
An Attorney Can Help Resolve Your Case
Did you know the vast majority of cases are resolved outside of court?
While probate cases are generally initiated with a petition, they often can be resolved outside of court at mediation if the parties involved in the dispute are amenable to such a solution. If a dispute can be resolved through mediation, it can save you substantial time and money in litigation costs.
Mediation uses a neutral third party, called a mediator, to facilitate negotiations between parties. The mediator can help to resolve the conflict by reframing the problem, easing tensions between parties, and offering viable solutions, but the ultimate decision of whether or not to settle will rest with the parties.
FAQs: What It Means to Be Under Duress
While we’ve explained the primary differences between duress and undue influence, there is always more to learn. Explore our FAQs for a deeper understanding of undue influence and duress.
Can you claim duress to object to probate?
Probate is the process of authenticating a decedent’s will, paying their creditors and distributing their assets to their estate beneficiaries and heirs, among other things.
If someone suspects a testator (i.e., the creator of the will) was under duress when they drafted, changed or executed their will, they can hire a probate attorney to object to the will’s admission into probate, or if probate has already been opened, to contest the will and revoke probate.
If they are able to prove a will was drafted, changed or executed by the testator as a result of duress, the entire will, or the portions of it that were obtained through duress, generally will be invalidated by the court.
Is it possible to prove duress after a decedent has died?
It can be more difficult to prove duress after a victim has died, but it is not impossible. Hiring an attorney to help with the process can improve your chances of success.
If the elements of duress cannot be proven with the evidence you have, you could always try proving undue influence instead, since it is more common and may be easier to prove than duress.
As an example, even if you cannot prove that a decedent had been under duress when making changes to their trust, you may be able to prove undue influence if the victim was vulnerable, had a close relationship with the influencer, and was manipulated to the point they acted against their own free will to favor the influencer.
Regardless of whether you prove duress or undue influence, the consequences are likely to be similar in the context of probate.
How does signing a contract under duress affect the validity of the contract?
Until the claim of duress is proven, a contract that allegedly was created, changed or signed under duress is valid. Only by hiring an attorney and bringing the issue to court can you potentially invalidate a contract that was obtained through duress.
How can I determine whether a situation involves coercion or undue influence?
In legal contexts, it is common for the terms “undue influence” and “duress” to be used to describe certain manipulation tactics. “Coercion” is just another form of manipulation involving force and control. As an example, a person could be coerced into transferring property to someone.
Depending on the specifics of the situation, coercion can be either duress or undue influence.
Contact Keystone if You Suspect Undue Influence or Duress
If a loved one’s property was misappropriated or their estate plan compromised as a result of undue influence or duress, there are steps you can take to reverse the damage done. A probate attorney can be a valuable resource during this process.
Since 2014, the attorneys at Keystone have been exclusively representing clients like you. Whether you’re a victim of undue influence or duress, a loved one of a vulnerable person, or a beneficiary who was disinherited under suspicious circumstances, we can help.
Contact Keystone at your convenience to request a free consultation.
