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Consider these factors before claiming undue influence

01.07.2020 | Litigation, Probate/Trust Litigation

Your mother’s caregiver took a great burden off of you when he started the job, and you know your mother had a special bond with him. Now that you are reviewing her will, you realize that perhaps that bond was stronger than you realize, or maybe it was even inappropriate.

The will states that he is the beneficiary of most of her assets. Is this a case of undue influence?

Determining undue influence

The American Bar Association notes that in California, the courts consider four factors when determining whether someone caused something through undue influence:

  • Was the victim vulnerable? Regarding vulnerability, the court may include but does not limit it to illness, injury, age, impaired cognitive function, emotional distress, dependency or isolation.
  • Did the influencer appear to have authority? Signs of apparent authority include providing care, taking care of financial duties, being a legal or health care professional or acting as a spiritual adviser, among others.
  • Did the influencer use tactics or actions? These may include controlling medication, interactions with others or physical necessities; coercing, intimidating or using affection; or initiating changes in the victim’s property rights in a hasty, secretive or otherwise inappropriate way and claiming to be a professional at making those changes.
  • Was the outcome inequitable? Possible financial consequences to the victim may be evidence of inequity, and so may divergence from the victim’s previous intentions or conduct. The victim may also have made decisions that conveyed value disproportionate to the services the influencer provided or that seem inappropriate based on the nature of the relationship.

Weighing the factors

If you take the case to court, the judge or jury does not have to consider one of the points more important than the others. For example, your mother’s vulnerability may not be more important than the apparent inequity of the will.

On the other hand, the court may determine that even with all four factors present, there is not any real evidence that the caregiver exerted undue influence over your mother. This is not a likely outcome, but the potential for it does give some idea of the vagueness of the law in this type of situation and the need for caution in pursuing litigation based solely on undue influence.

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