The Basics of Proving Undue Influence in a Court Case

The Basics of Proving Undue Influence in a Court Case

• April 28, 2017 - Estate Litigation, Trust Litigation,

Elder financial abuse is a serious crime that reverberates throughout our communities, and it’s a growing problem across the state of California. When an elder’s estate or trust is suddenly changed without explanation to produce an unjust outcome, an unscrupulous family member, caretaker, or other individual could be committing elder financial abuse, with the means of coercion known as undue influence. Elder financial abuse reveals itself through specific patterns and behaviors, and we can usually track a wrongdoer’s steps toward gaining control of an estate. They’ll employ all sorts of tricks and techniques to get their way: frequent visits, blandishments, and gifts (emotional manipulation) as well as isolation, outright intimidation, and even physical abuse. Through these methods, undue influencers can maneuver themselves into legal position for inheriting the elder’s funds and property once they’ve passed away.

New documents, signed by the elder under suspicious circumstances, will appear to validate the wrongdoer’s claims on the estate. The other children and grandchildren of the elder, meanwhile, are left wondering what action to take after learning that the figurative rug’s been pulled out from under them.

If you are faced with a bad actor exercising undue influence in an estate case, there are certain key elements required to establish your claim.

1. Double-Edged Sword: From January 1st, 2014, the definition of undue influence was updated under California’s Welfare & Institutions Code Section 15610.70. Now undue influence claims that are used to overturn invalid wills and trusts in probate court can also be filed in your local county superior court as a potential case of elder financial abuse. Civil court trials, decided by a jury, allow you to pursue damages and punish a wrongdoer for elder abuse.
2. Coercion Needed: The division of an estate may indeed be unfair, but if the elder testator is of sound mind and not coerced, then a judge won’t take much interest in the result. Unfairness is not enough. What’s crucial here is the presence of coercive behavior by the bad actor against the elder. This could be isolation, emotional manipulation, physical abuse, or some combination thereof – all to produce an unequitable result for the original intended beneficiaries.
3. Burden of Proof: Undue influence provides a legal advantage to plaintiffs, since burden of proof shifts to accused elder abusers, who are obligated to show they did not exercise undue influence. But a plaintiff must first demonstrate: 1) a confidential relationship between the elder and suspected abuser. 2) The abuser was an active party in forming the will or trust. 3) The abuser unduly benefitted from the new estate arrangement.
4. Susceptibility: The mental condition of an elder comes into play when proving undue influence. The elder victim must be susceptible to manipulation by the wrongdoer – in other words, in a weakened mental state. Degenerative diseases like dementia and Alzheimer’s, as well as the effects of prescription drugs, can often factor into elder financial abuse stories. Expert medical testimony is necessary to demonstrate elder susceptibility.

All the above elements comprise a viable court case of undue influence and elder abuse. And as with any successful case, a judge (in probate) and jury (in a civil trial) should see the full context and timeline of what happened – how an injustice was perpetrated against an elder and their loved ones. Relating the story of what happened in a personal way is a big step toward holding an abuser accountable and recovering rights to an estate or trust.

How Undo Influence Works: a Practical Analysis

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. I’ll conclude it with a four-part examination of the relationship and actions between Scooter and his mother can help put a focus on undue influence.

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.

1. The Influencer’s Source of Power and Opportunities for Abuser: 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.”
2. 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.
3. 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.
4. Deathbed Transfers: Deathbed transfers may be an elder’s beautiful gesture of love and care. And, who can argue with this? At our life’s end we want to be able to say as St. Paul did that “I have fought the good fight, I have finished the race, I have kept the faith.” Sometimes deathbed transfers are an important part of finishing the race.

 

There are other deathbed transfers spawned not by the love and care of the giver but rather generated by the avarice and greed of the taker. The taker has a different kind of race in mind – the race to take everything he or she can from the dying person and to keep it from the natural recipients of the elder’s bounty. It is these later deathbed transfers that often shake families and foment distrust, dissension and ultimately stoke the fires of litigation.

Few would argue that a dying person is not vulnerable. A dying person’s vulnerability is likely marked by “incapacity, illness, disability, injury, age, impaired cognitive function, emotional distress, isolation or dependency.” An early inquiry is whether “the influencer knew or should have known of the alleged victim’s vulnerability.” So a deathbed gift is first analyzed within the context of the decedent’s overall mental, emotional and physical circumstances. Once such conditions are understood the next consideration is whether the influencer knew or should have known of the victim’s vulnerability.

It is not uncommon that a person dying is heavily medicated and alternating between consciousness and unconsciousness. A person need not be heavily medicated to be vulnerable to deathbed undue influence. The emotional distress, isolation and all attendant emotions and concerns of the dying both open the door to the greatest graces and love available in our lives and also the vulnerability to manipulation by the unscrupulous.

All influencers have some type of apparent authority. Evidence of this authority may include “status as a fiduciary, family member, care provider, healthcare professional, legal professional, spiritual advisor, expert, or other qualification.” We have seen deathbed undue influence cases involving the coercion of an elder by a spouse, former spouse, caretaker, stepmother, child, niece, nephew, brother, sister and grandchild – not all at once or in the same case – still the net of potential undue influencers spreads wide. It’s the abuse of authority that makes for undue influence.

Undue influence scenarios seem to take easier hold in families where the elder is isolated from other family members by geography or the intervention of the influencer. Such isolation can be used as a tool against the elder that no one loves him/her except the relative/caretaker that is geographically or physically near. The elder might have little knowledge that his or her loved ones have been making continued but frustrated efforts to communicate with the elder. If we remember one thing it is that preexisting frayed family relationships are the seeds of estate disputes used by the influencer. In the same way, preexisting family strains can be manipulated to the benefit of the influencer.

Controlling “medication, the victim’s interactions with others, access to information, or sleep” are tools of the undue influencer. Affection, intimidation or coercion are additional tools of undue influence. The undue influencer’s actions to have the victim make changes in personal or property rights are often cloaked in secrecy and initiated in haste. Secrecy is occasioned by warnings of dire results to the elder if the secrecy is breached. These warnings often focus on the threat that the elder is going to be put in a home and isolated from everyone that he or she holds dear.

When actions made by undue influencers are challenged, the scope of the influenced personal property and real property transfers must be fully assessed. Discoveries of wrongdoing are often delayed. Real property gifts evidenced by recorded transfers may be accessed by public record searches. Bank transfers and cash transfers are more difficult. Gifts, grant deeds of real property, assignments of bank and security accounts, as well as changes in the terms of durable powers of attorney, medical and health care powers of attorney, wills and revocable and irrevocable trusts are part and parcel of many undue influence cases.

Informal discovery in undue influence cases can be quite difficult. Good faith inquiries into transfers often feed the paranoia of an impaired elder. The impaired elder, already influenced by the wrongdoer, fears that such inquiries will be used to take all that the elder has and put him or her in an “old people’s home.” Getting over an elder’s fears and convincing him or her that such inquiries are focused on the elder’s wellbeing is often a high hurdle.

When undue influence cases are in formal discovery, the “equity of the result” will be one part of the discovery focus. Deathbed dispositions to caretakers after a long and consistent estate plan benefitting children will be inequitable. The same is true as to preference of one child or grandchild over another when long-term estate plans favored equity between children or grandchildren. Equitable considerations include “the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing … or the appropriateness of the change in light of the length and nature of the relationship.”

Deathbed transfers commonly diverge from the elder’s prior intent or years of course of conduct. I have witnessed several cases where decades of estate planning equally benefitting an elder’s siblings, children or grandchildren are derailed shortly before death – derailed to benefit one sibling, child or grandchild over all the others. Fodder for disagreement easily arises in estate disputes between stepparents and stepchildren.

I have also seen several deathbed transfer cases where the elder is literally speechless – seemingly approving his new estate plan by eye contact or thumbs up or thumbs down. This is an invitation to mayhem. The influencer tells the “deathbed” lawyer that the elder wants this or that – just write it up and when you visit with the elder you will see that this is what he wants. Yes, this really happens. When it happens family members are baffled as to what to do. For one thing, step back and put this in perspective. Go back to the two-part test of elder abuse.

Deathbed Vulnerability

A dying person’s mental, emotional and physical state is likely marked by “incapacity, illness, disability, injury, age, impaired cognitive function, emotional distress, isolation or dependency.”

Should the influencer known of this vulnerability? In most cases the better question might well be “how could the influencer not have known of this vulnerability?” That said the statutory inquiry is whether “the influencer knew or should have known of the alleged victim’s vulnerability.”

I can think of several deathbed cases where the elder was incapacitated – unable to speak. The illness might have been a stroke, heart disease, vital organ shutdown, or a Stage IV Cancer (brain, lung, bone or some other life ending illness). Could this be considered a disability? Yes. Is this an injury? Yes. What is the age factor? An elder. Was this impaired cognitive function? It doesn’t take a professor from Stanford Medical school to say yes. Is there emotional distress? Yes. Is there isolation? Yes. Dependency? Yes. Well, it sure looks like undue influence.

What have we learned from all of this? The simple truth is that people are free to give what they have to whom they want. An armed robber is not the beneficiary of this freedom. An armed robber takes by force. A burglar may not be taking by force, but his taking is surely wrongful. In undue influence cases freedom is more nuanced. The ultimate question is whether a wrongdoer took advantage of an elder’s vulnerability.

Vulnerability coupled with the influencer’s knowledge of such vulnerability are primary issues. I don’t give much credence to “I was only trying to help” – “I was only doing what Uncle Louie asked me to do” – “This is what he wanted” – “His kids only wanted money.”

Undue influence cases are litigation battlefields of emotion, disputed testimony, greed and often outrage. It helps to have covered this ground before. That said, there is always new territory when creativity is used for ill rather than good. Undue influencers are inventive in their wrongdoing and active in their secrecy. Vigilance is helpful in stopping financial elder abuse, and quick, focused legal action is the best answer to undue influence.

Questions of Capacity

A decedent’s capacity at the time of making a will or a trust does not cover or legitimize all estate or financial elder abuse wrongs. This is a truth often ignored or misunderstood by estate and trust wrongdoers as well as estate planners who unknowingly participate in an estate plan tainted by undue influence or financial elder abuse.

Probate, estate and trust litigation has long been characterized as a fight over a decedent’s capacity to make a will or a trust. Better understanding of the elements of undue influence coupled with California’s updated elder abuse statutes make the inquiry into capacity a factor but not the dispositive consideration in determining wrongdoing against an elder.

Elder financial abuse cases can arise from a variety of circumstances, among them the undue influence of a person or entity causing the elder to make agreements, donative transfers, or testamentary bequests to a person or entity that should have known that the property transfers are likely to be harmful to the elder.

Common elder abuse situations involve death bed transfers, the actions of an alcohol addicted or substance abuser sibling utilizing undue influence to freeze out other siblings from the life or estate of an elder, or the outright taking of an elder or an estate’s assets. Wherever litigation might occur, I often encounter a common refrain of defense counsel and/or the estate planner that the elder had capacity at the making of the will or trust.

In all the litigation that I’ve undertaken, not once have I heard from an estate planner that when he or she prepared the estate plan, the elder didn’t have capacity. This isn’t a big surprise. If the estate planner thought that the elder lacked capacity, then he or she shouldn’t be preparing an estate plan – it’s just that simple. Yet capacity is only one element, and not a dispositive one at that in determining an elder’s vulnerability to financial elder abuse.

California Welfare & Institutions Code Section 15610.70 identifies some but not all of the factors that are to be considered in determining the vulnerability of the victim to undue influence.

“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.”

The way that the identification of these factors plays out in real-life elder financial abuse cases includes the procurement of the elder’s medical records, their review by a psychiatrist or neuropsychologist, and testimony of the victim’s friends, neighbors and family addressing the other identified elements of vulnerability.

In litigating these cases, I have watched videos of the decedent signing his or her trust, declarations from a physician of psychiatrist affirming capacity and the undue influencer’s testimony that mom/dad always wanted to change her/his will or trust because of some real or fathomed reason. Make no mistake – mom or dad can change his will or trust, and the law protects this. What the law doesn’t protect is the action of an influencer who uses actions or tactics that constitute elder financial abuse. Among such wrongful actions or tactics identified in the statute are:

“(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.”

When I represent aggrieved beneficiaries and heirs, I’ll take a far more aggressive stance if defense lawyers assert that all is well because the decedent had capacity. As previously stated, I’ve yet to discover a case where an estate planner admits to have prepared a will or trust knowing that the testator or trustor/settlor did not have capacity. The more important inquiries involve those identified in the statute – vulnerability as well as the list of actions that prey on that vulnerability.