Hackard Law - Estate Planning
Call for free initial consultation.


We speak Spanish and Russian.

How Do You Identify Undue Influence?

Estate Law Undue Influence.jpg

Undue influence in California financial elder abuse cases and estate law is often a rearview-mirror inquiry. An undue influence investigation looks back at a set of events and determines the factors that joined together to create an inequitable result. In other words, a rearview-mirror inquiry is an examination of four components that make up undue influence.

In California law undue influence (California Probate Code Section 15610.70) means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity."

Litigated undue influence cases fill the dockets of California Superior Courts - both probate and civil divisions. These cases often evidence a narrative that may be best expressed in stories - stories that marshal elements from many cases, are crafted from bits and pieces of experience gathered over the years, yet are not specific to any one particular case. The names in the following story are fictional.

Donna was frightened. In her eighty years of life she had never been so isolated. She couldn't get a restful sleep and her checklist of medications challenged her mind and memory. Donna's four children were in their late 40s and early 50s. Three of her children led relatively normal family lives but one child, "Scooter," had a history of substance abuse and problems with alcohol. Scooter had once been married - for six months - but that was decades ago.

Scooter lived with Donna, his mother. More accurately, he lived off his mother. Scooter had not held a job since his pickup-based scrap metal business ceased at the same time his sentence in the county jail commenced. Scooter's theft of catalytic converters from an across town neighborhood was abruptly ended when he was caught at 3:00 am underneath a homeowner's car parked in a driveway. When the county sheriff came upon Scooter after a homeowner's 911 call, Scooter explained that he was sleeping under the car. Scooter's explanation didn't go too far.

Now Scooter, fresh from his fourth stint in the county jail, is at Donna's home. It didn't take Scooter long to convince Donna that his siblings didn't care about her. This wasn't that hard to do, since Scooter would not let his mother speak on the telephone with her other children and even went so far as to lock the front gate to protect against intrusion. Scooter's mother put him on all of her bank accounts - bank accounts soon drained by gambling, drugs and the other vices that Scooter had made a part of his life.

This story can end in a variety of ways. However it ends a four-part examination of the relationship and actions between Scooter and his mother can help put a focus on undue influence.

Undue Influence Estate Law.jpg

1. The Vulnerability of the Victim

Medical records, family and neighbor accounts, and photographs evidence Donna's dementia. Donna expressed her concern that people were out to get her. She seemed oblivious to the way that she had let herself go - unkempt and living in filth. Donna's physical and functional decline were evident when those who had long known her had the chance to see her - an opportunity for the most part prevented by Scooter.

Donna's medications had some mind-altering qualities and also affected her sleep. Donna, oblivious to the toxic mix of alcohol and medications, insisted on her daily vodka and orange juice. Scooter was more than happy to oblige. Outside observers would say that Donna was lonely, anxious, depressed, fearful and still grieving from the loss of her husband.

Donna feared abandonment. Scooter let her know that if he left she would probably be put in an old people's mental asylum. Donna passively accepted Scooter's warnings but they only increase her fear.

2. The Influencer's Source of Power and Opportunities for Abuse

Scooter, Donna's son, was in a position of trust and confidence. Donna's illness coupled with Scooter's enforced isolation and warnings ultimately caused Donna to look only to Scooter for his advice and judgment. Psychologists would describe the relationship as "Dominant-Subservient."

3. Emotional, Psychological and Legal Manipulation as Undue Influence Actions and Tactics

Scooter seems to have read the operating manual on undue influence. He imposes isolation on his mother and controls all of her social interactions. Scooter has worked to suppress his mother's loyalties to her other three children by lying to her about how they don't care about her, won't call or visit her - all calls and visits made impossible by Scooter. Truly Scooter has created a "siege mentality" for his mother. She now seems to mindlessly follow whatever he demands.

4. Unfair and Unnatural Transactions or Outcomes

Donna lost her property. Her bank accounts are now in Scooter's name. She signed over her house to Scooter. The care once provided by outside sources has now stopped. Donna's long held estate plan to split her assets between her four children is effectively null and void. All of Donna's past preferences for her estate have been overcome by Scooter's real time subjugation of his mother's will.

The story of Donna and her manipulation by Scooter is a sobering one, but it's these types of cases we deal with frequently. Elder financial abuse and undue influence are all too real - stand up and speak out if your loved one might be a victim.

If you suspect undue influence or elder abuse in your estate case, call Michael Hackard at Hackard Law today at 916-313-3030.

No Comments

Leave a comment
Comment Information
Rated By Super Lawyers Michael A.Hackard SuperLawyers.com AV PREEMINENT Martindale-Hubbell Lawyer Ratings Avvo Rating 10.0 Superb Top Attorney Litigation Million Dollar Advocates Forum Multi-Million Dollar Advocates Forum Top Attorneys In Sacramento Lead Counsel | LC | Rated Hackard Law A Professional Law Corporation BBB Business Review Best Real Estate
Lawyers in

*AV Preeminent is a certification mark of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the confidential opinions of members of the Bar and the judiciary. Martindale-Hubbell ratings fall into two categories - legal ability and general ethical standards.

Privacy Policy | Business Development Solutions by FindLaw, part of Thomson Reuters.