What Is Undue Influence in Trust Litigation?
Probate Code Section 15610.70 defines Undue Influence as:
(a) “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:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(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.
Regrettably, society has evolved into a world where individuals need to ensure that their loved ones are protected financially and physically as they age. One of the most common types of abuse is undue influence, in which individuals are taken advantage of based on a vulnerability that the individual might have. Examples of vulnerabilities include: incapacity, illness, disability, injury, age, education, impaired cognitive function and emotional distress.
If you would like a consultation because you feel that your loved one has been taken advantage of financially by a friend, neighbor or relative, then call Etan Rosen for a consultation. Contact us at Beyer, Pongratz & Rosen, a Professional Law Corporation, and bring the peace back into your life.