Buffington Law Firm’s Elder and Trust litigation attorneys have litigated many lawsuits in which “Undue Influence” is a Cause of Action. “Undue Influence” is one of the most misunderstood concepts in litigation. In this short Blog article I will mainly focus on perhaps the most easily misunderstood elements of “Undue Influence,” namely, an inequitable outcome.
To understand Undue Influence and what it is, it is perhaps useful to first mention what it is not. Undue Influence is not the same thing as “incapacity” or “mental incompetence.” While weakness of mind is often, perhaps even usually, present in an actual situation involving Undue Influence, mental incapacity is not a requirement or prerequisite for an Undue Influence cause of action. Mental incapacity is an extreme situation where the victim generally is not well-oriented in time, place, or purpose, may not recognize the natural objects of his or her bounty, i.e. recognize or remember family members, comprehend the composition of his or her wealth or estate, and may be delusional, e.g. thinking one person is someone else, or that things are happening which are really not. Such a condition may, or may not, be present regarding the victim in a cause of action for Undue Influence.
Undue Influence is generally understood to be “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” [California Welfare & Institutions Code Section 15610.70]. Generally this involves a scenario in which one person exerts his or her will and persuasion against a weaker person in such a manner as to cause the victim to act contrary to what the victim really desires, and instead to act according to the desires of the influencer. This does not require that the victim be mentally incompetent and in a legal and practical sense the victim usually is not. Often the victim knows that he or she is being pressured to do something, but simply yields out of perceived necessity. Perhaps that daughter who wants the victim to leave her most of the victim’s estate is also the person who buys food and medicine and other necessities of life for the victim, for example. In such a circumstance the victim may feel that he or she is not in a position to say no, even if this is contrary to the victim’s true wishes. There are countless variations on this theme.
The key element of a valid Undue Influence Cause of Action are those last four words in Welfare & Institutions Code Section 15610.70, to wit: “…and results in inequity.” This may sound obvious, but in reality it can be subtle and misunderstood. Put another way, all influence and persuasion exerted upon a weaker or dependent person is not necessarily “undue” influence. It may very well be benevolent, proper, “due” influence (for lack of a better term). In life’s interactions we are all constantly influencing and persuading one another regarding all manner of things. For example, that son who shops for his mother, takes her to the doctor, and otherwise looks after her, may exert a strong amount of persuasion on his elderly mother to cause her to create an Advanced Health Care Directive (“ADHC”) and Durable Power of Attorney empowering the son to act in her stead. This may be out of the purest of motives, i.e. to enable the son to better care for his mother. It may very well be that mother is vulnerable to the son’s persuasion to the extent where it arguably rises to the level of “excessive persuasion.” However, if there is no inequitable outcome, e.g. the son does not misuse these powers for his benefit and to mother’s detriment, this does not form the basis for a valid undue influence claim in a lawsuit. Thus, if another sibling challenged the Power of Attorney or ADHC in court, perhaps out of envy or resentment, it would not be correct for a Court to set these documents aside and invalidate them as Undue Influence — because a key element in a legal Undue Influence Cause of Action would be missing: an inequitable outcome for the victim.
This may seem obvious. Unfortunately, it sometimes is not obvious during a courtroom battle where people may be making all manner of allegations and arguments. Judges sometimes struggle with this key requirement of a valid Undue Influence Cause of Action: an inequitable outcome for the “influenced individual.” If there is no “inequitable outcome” then the situation does not merit the Court’s exercise of its vast and broad powers in this context because the key element of an Undue Influence Cause of Action is simply not present or met.
If you are involved in a situation involving Undue Influence or other forms of Elder Abuse or the like, Buffington Law Firm invites you to contact us for a Free Legal Consultation. There is never any charge or obligation, and all discussions are protected by the attorney-client privilege. All consultations are handled by experienced elder law litigation attorneys.