Undue Influence & Overpersuasion
I’m Mike Hackard with Hackard Law. We represent estate heirs, trust beneficiaries, and victims of financial elder abuse in most of California’s largest urban areas.
We’ve found that undue influence on makers of estates and trusts generates an inordinate number of estate challenges. Undue influence is sometimes referred to as over persuasive influence. It has many elements and can be scrutinized from many angles.
Today, I’m going to use an appellate case (Keithley v. Civil Service Bd.) to focus on what constitutes undue susceptibility to over persuasive influence. I’ll make some comments as to each point and reference situations that I’ve seen to shine some light on the point.
“[U]ndue susceptibility to … over persuasive influence may be the product of physical or emotional exhaustion or anguish which results in one’s inability to act with unencumbered volition. [Citations.] . . .
[O]verpersuasion is generally accompanied by certain characteristic elements which, when simultaneously present in a significant number, characterize the persuasion as excessive. These elements are:
(1) Discussion of the transaction at an unusual or inappropriate time.
(2) Consummation of the transaction in an unusual place.
Points #1 and #2 go together. You can use your imagination or your real experience here. Here you can find newly admitted patients with physical and cognitive limitations in nursing homes, ICUs, and deathbeds.
(3) Insistent demand that the business be finished at once.
(4) Extreme emphasis on untoward consequences of delay,
These are the “now or never” methods of persuasion. Bad things are going to happen if this trust is not signed, property not deeded, or bank account not transferred today.
(5) The use of multiple persuaders by the dominant side against a single servient party.
All those that stand to benefit from the proposed transaction can gang up to over persuade the owner of property who becomes the maker of a will, trust, or real property transferor.
(6) Absence of third-party advisers to the servient party.
(7) Statements that there is no time to consult financial advisers or attorneys.
Points #6 and #7 are two sides of the same coin. Over persuasive influencers do not want their target to seek out neutral and professional assistance. Good fiduciaries can quickly foil a scammer’s scheme.
There’s a lot more to over persuasion than what we’ve covered. California court decisions have plenty to say about undue influence.
If you would like to speak with us about your undue influence case, call us at Hackard Law:
916 313-3030. We’ll be happy to speak with you.
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