UNDUE INFLUENCE IN AN ESTATE PLAN
A probate judge will look for a claimant to prove that the will either
1) Leaves property in an unexpected manner, cutting out close family members in favor of others without an obvious explanation before their death
2) The will-maker may have been particularly trusting of, or dependent on, the influencer, sometimes referred to as a confidential relationship
3) Frailty, illness, or fear of abandonment make the will-maker susceptible to undue influence
4) The confidential relationship influencer took outright advantage of the will-maker and directly benefited by substituting a will of their choosing and not the will-makers
Document Suspicions Circumstances of Elder Abuse, Exploitation Fraud & Undue Influence, Such As:
(1) the identified victim’s susceptibility or vulnerability to influence (including among other things issues related to age, physical or mental deterioration, emotional state, education, finances, etc.);
(2) a confidential relationship between the supposed perpetrator and identified victim;
(3) beneficiary’s active involvement or participation in procuring the legal instrument in question;
(4) secrecy concerning the existence of the transaction or legal changes, or the events occurring in haste;
(5) lack of independent advice related to that transaction or new legal document;
(6) changes in the identified victim’s attitude toward others;
(7) discrepancies between the identified victim’s behavior and previously expressed intentions;
(8) the unjust or unnatural nature of the terms of the transaction or new legal instrument (new will, new trust, etc.);
(9) anonymous criticism of other potential beneficiaries made to the identified victim;
(10) suggestion, without proof, to the identified victim that other potential beneficiaries had attempted to physically harm him or her;
(11) withholding mail;
(12) limiting telephone access;
(13) limiting visitation;
(14) limiting privacy when victim is with others (which conduct is generally known as “chaperoning”); (13) discussion of transaction at an unusual or inappropriate time;
(15) consummation of the transaction at an unusual place;
(16) use of multiple persuaders against a single vulnerable person;
(18) demand the business be finished at once;
(19) extreme emphasis on the consequences of delay;
(20) obtaining a lawyer for the victim;
(21) using victim’s assets ‐ such as property, money, credit cards, etc.;
(22) becoming conservator, trustee, beneficiary, executor, etc.;
(23) obtaining access to bank accounts;
(24) obtaining access to safety deposit boxes;
(25) having the victim name the perpetrator on Power of Attorney forms;
(26) isolating the testator and disparaging family members;
(27) mental inequality between the decedent and the beneficiary;
(28) reasonableness of the will or trust provision;
(29) presence of the beneficiary at the execution of the will;
(30) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
(31) recommendation by the beneficiary of a lawyer to draw the will;
(32) knowledge of the contents of the will by the beneficiary prior to execution;
(33) giving of instructions on preparation of the will by the beneficiary to the lawyer drawing the will; and, (34) securing of witnesses to the will by the beneficiary.
Research Focus State, Idaho: Elder Abuse, Undue Influence Cases & Probate Precedents.
1. Undue influence may be inferred from the fact that the beneficiary was active in the preparation of the will. In re Lunders’ Estate, (1953) 74 Idaho 448, 454, 263 P.2d 1002; Estate of Randall, (1939) 60 Idaho 419, 93 P.2d 1.
2. Undue influence has been defined as domination by the guilty party over the testator to such an extent that his free agency is destroyed and the will of another person substituted for that of the testator. In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563(1963); In re Lunders’ Estate, supra.
3. Although conclusive rights should not be given it, the fact that the testator having the capacity and ability to do so failed for a substantial period of time to change or revoke a will alleged to be the product of undue influence, negatives the claim of undue influence.” 94 C.J.S. Wills § 261, p.1143. With respect to a will which also continued unchanged for two years prior to the testator’s death, calling it strong evidence that he was not coerced into making it, but that it was entirely satisfactory to him when made and that satisfaction continued until his death.”Laberee v. Laberee, 112 Or. 44, 53, 227 P. 460, 462, 228 P. 686; In re McCaslin’s Estate (1960) 222 Or.599, 352 P.2d 1111.
4. If, prior to executing his last will, a testator shows a continuity of purpose running through his former wills and codicils which indicates a settled intent or consistent state of mind on his part as to manner of distributing his estate, such fact may be considered in determining whether he is in possession of a disposing mind, that is, had testamentary capacity and was free from undue influence in making his last will.” In re Nelson’s Estate, 72 Wyo. 444,266 P.2d 238 (1954); In re Hart’s Estate, 107 Cal.App.2d 60, 67, 236 P.2d 884, 889.
5. Weakened mental and physical condition of Testator are factors to be considered in determining question of undue influence. Estate of Brown, 52 Idaho 286, 15 P.2d 604; In re Lunders’ Estate, 74 Idaho 448, 263 P.2d 1002.
6. “Undue influence consists of domination by guilty party over testator to such extent that his freeagency is destroyed and will of another person is substituted for that of testator.” Witthoft v. Gathe, 38 Idaho 175, 221 P. 124; In re Lunders’ Estate, 74 Idaho 448, 263 P.2d 1002.
7. Undue influence is any means employed upon and with testator which under circumstances and conditions by which testator was surrounded, he could not well resist, and which controls his volition and induced him to do what otherwise would not have been done. In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563.
8. Influence arising from gratitude, affection or esteem is not undue, nor can it become such unless it destroys the free agency of the testator at the time the instrument is executed and shows that the disposition therein results from fraud, imposition and restraint of the person whose superior will prompts the execution of the testament in the particular manner which the testator adopted. In re Estate of Hill, 198 Or. 307, 335, 256 P.2d 735, 747; In re McCaslin’s Estate, 222 Or. 599, 352 P.2d 1111.
9. Influence gained by kindness and affection will not be regarded as undue if no imposition or fraud be practiced, even though it induced Testator to make unequal disposition of his property in favor of those who contributed to his comfort. In re Reddaway’s Estate, 214 Or. 410, 329 P.2d 886.
10. It is not sufficient for the contestant to merely prove circumstances consistent with the exercise of undue influence; that before the will can be overthrown the circumstances must be inconsistent with the voluntary action on the part of the testator. In re Welch’s Estate, 43 Cal.2d 173, 272 P.2d 512 (1954).
11. Mere existence of a confidential relationship to testator does not in itself establish undue influence. To set aside a will on the ground of undue influence there must be shown influence used directly to procure will, amounting to coercion destroying free agency on part of testator.In re Eggan’s Estate, 86 Idaho 328, 386 P.2d 563.
12. A will cannot be impeached by the subsequent oral declarations of the Testator. Gwin v. Gwin, 5Idaho 271, 48 P. 295.
13. The declarations of a testator made after the execution of a will showing his dissatisfaction therewith and his intention to execute a new will are not admissible to show that said will was executed under duress or undue influence. Gwin v. Gwin, 5 Idaho 271, 48 P. 295.
14. The general rule established by the overwhelming weight of authority is that declarations of the testator not made contemporaneously with the execution of the will, or so near thereto as to constitute a part of the res gestae, are not competent as direct or substantive evidence of the truth of the matters stated when offered on the issue of undue influence inducing the execution of the will. In re Estate of Wayne, 134 Or. 464, 291 P. 356, 294 P. 590,79 A.L.R. 1427; 148 A.L.R.1225.
15. A confidential relation exists between two persons, whether their relations be such as are technically fiduciary or merely informal, whenever one trusts in or relies on another. The question is whether or not trust was reposed. Sewell v. Ladd, (Mo.App. 1942) 158 S.W.2d 752,756.16. The existence of a confidential relation is purely a question of fact. Ringer v. Finrock, (Pa. 1941) 17 A.2d 348, 350.
17. A confidential relation may exist as a matter of fact whenever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, dependence or ignorance on the other side. Ringer v. Finrock, (1941) 340 Pa. 458, 17 A.2d 348, 350; Floyd v. Green, (1939) 238 Ala. 42, 188 So. 867, 871; In re Null’s Estate, (1930) 302 Pa. 64, 153 A. 137,139; In re Day’s Estate, (1953) 198 Or. 518, 257 P.2d 609, 614.
18. Where the beneficiary took the testator to a lawyer and remained with the testator during the preparation and execution of the will, even though the beneficiary was outside of the lawyer’s office, or in the waiting room, while the testator was conferring with the lawyer and while thewill was being executed, there is such evidence of activity in the preparation of the will that undue influence may be inferred from the presence of the beneficiary in this manner. In re Lunders’ Estate, (1953) 74 Idaho 448, 451, 263 P.2d 1002; Estate of Randall, (1939) 60 Idaho419, 93 P.2d 1; In re Gagliasso’s Estate, (1957) 150 Cal.App.2d 65, 309 P.2d 513, 514; In re Estate of Leonard, (1949) 92 Cal.App. 420, 207 P.2d 66, 72.
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National Center on Law & Elder Rights Research.
NCLER: Elder Abuse: The Impact of Undue Influence https://ncler.acl.gov/pdf/Advanced-Elder-Abuse-The-Impact-of-Undue-Influence.pdf
“Psychologist Margaret Singer was one of the first researchers to connect elder abuse to undue influence,
which she defined as “(w)hen people use their role and power to exploit the trust, dependency, and fear of
others. They use this power to deceptively gain control over the decision making of the second person.”
The psychological tactics of undue influence have been likened to tactics used by cults, ….”
Who commits undue influence
The psychological definition of undue influence implies that the influencer is someone the older adult knows and with whom the older adult already has a relationship of trust or who intentionally develops and then takes advantage of a relationship of trust with the older adult.
Leading Experts in Accessing Undue Influence in Elder Abuse Litigation Matters.
Elder Justice, Civil Rights & Human Trafficking
I.The Elder Justice Act
- Elder Abuse Prevention Intervention Demonstrations (PPHF)
- Elder Justice Innovation Grants
- State Grants to Enhance Adult Protective Services
- Voluntary Consensus Guidelines for State APS Systems
- National Adult Maltreatment Reporting System (NAMRS)
- The Elder Justice Act: Background and Issues for Congress PDF; Updated June 15, 2020
III. TITLE XX—BLOCK GRANTS AND PROGRAMS FOR SOCIAL SERVICES AND ELDER JUSTICE
//www.ssa.gov/OP_Home/ssact/title20/2000.htmIV. DOJ, ABA & APA ELDER ABUSE RESOURCES, LAWS & GUIDES1) //bja.ojp.gov/…/Publications/ABA-ElderAbuseGuide.pdf2) //www.apa.org/…/capacity-psychologist-handbook.pdf3) //www.apa.org/…/reso…/guides/judges-diminished.pdf4) //www.apa.org/…/guides/diminished-capacity.pdf5) //www.justice.gov/elderjustice/file/886971/download6) //eagle.usc.edu/state-specific-laws/
V. Legal Standards of Undue Influence//bernatzexperts.com/…/files/pdfs/SCAM_Model_0.pdfThe Restatement of Contracts, an authoritative secondary legal source, defines undue influence as follows:Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare (“Restatement (Second) of Contracts,” 1981).The doctrine is akin to doctrines of fraud and duress and may be alleged in legaltransactions, such as executing a will, entering a contract, or conveying property to another, as well as cases of financial abuse, sexual abuse, and even homicide. Other definitions stress the psychological component of undue influence, the intentional and improper use of power or trust in a way that deprives a person of free will and substitutes another’s objective.
Restatement of Contracts – SecondThe Restatement of the Law of Contracts is a legal treatise from the second series of the Restatements of the Law, and seeks to inform judges and lawyers about general principles of contract common law. It is one of the best-recognized and frequently cited legal treatises in all of American jurisprudence. Every first-year law student in the United States is exposed to it, and it is a frequently cited non-binding authority in all of U.S. common law in the areas of contracts and commercial transactions. It is a work without peer in terms of overall influence and recognition among the bar and bench, with the possible exception of the Restatement of Torts. The American Law Institute began work on the second edition in 1962 and completed it in 1979; the version in use at present has a copyright year of 1981. For an explanation of the purpose of a restatement of law, see Restatement of the Law.
Guardianship Abuse Report Submitted to the United Nations
HuffPost: Is Elder Guardianship A New Form Of Human Trafficking?//www.huffpost.com/entry/is-elder-guardianship-a-n_b_11970144“
…. the victims are seniors. The partners in crime are financial predators and agents of the Elder Guardianship system — attorneys, professional guardians, medical experts, and others who are paid out of the senior’s assets. There are some good judges but many are overworked and some are actively aiding the exploitation. Anyone can file to deem you incapacitated. The entire process from filing an incapacity petition to plenary guardianship where all rights are removed can happen within days. Yet, once you’re caught in the web, it’s almost impossible to break free… AND you are forced to pay your abusers in the process.”
When Guardianship becomes Human Trafficking.//drrichswier.com/…/guardianship-becomes-human…/
Human Trafficking: Hunting the elderly, children and disabled for profit in America.//ppjg.me/…/human-trafficking-hunting-the…/
Article Excerpt From Elder-laws.com
Like all people, the elderly have certain rights and privileges that are outlined by United States legislation. For example, elderly rights prohibit an individual from subjecting an elder to offensive behavior such as beating, taunting, threatening, molesting, or exploitation.
Elder abuse law has designated elderly rights transgressions to be criminal and illicit activity, punishable by hefty fines or imprisonment. The Older Americans Act is an elder abuse law that seeks to provide federal funding to research and projects related to aging, and is specifically focused on developing and improving social services and community planning for elders.
The Vulnerable Elder Rights Protection Program is another elderly abuse law effected to increase awareness about the prevalence of elder abuse and advocate for elderly rights. The Program also conducts federal funding to states, in order to encourage them to develop services dedicated to assisting elders. This legislation that seeks to maintain elderly rights is similar to the child abuse laws that prohibit individuals from subjecting children to physical harm or emotional damage.
In order to help ensure elderly rights are maintained, judicial officials often punish elderly abuse harshly. The punishment assessed for elder abuse varies a great deal from one state to another. Because each state maintains the ability to establish its own laws, one state government may exact a relatively benign punishment upon an individual convicted of elder abuse, while other states may impose a much more severe sentence upon the offender.
In some states, elder abuse law perceives the maltreatment of an elderly individual as a misdemeanor, while other states punish this behavior as a felony. Depending upon the severity of the charge that is imposed, an offender may be required to spend numerous years in prison as punishment for his/her behavior.
Individuals maintain fundamental rights regardless of their age. Violating these rights is a breach of the United States Constitution and federal legislation, and if caught, a perpetrator will face certain legal consequences.