In order to create a valid will or trust, the person doing so must have legal capacity to do so. When someone’s cognitive capacities are compromised, however, they often come become increasingly reliant on a family member, caregiver or fiduciary to make decisions.
If there was evidence of undue influence when the document was created, a court can invalidate it. But what is undue influence?
Understanding undue influence
“Undue influence” is both a psychological and a legal term. Psychologists have connected it to the broader problem of elder abuse. One influential early researcher, Margaret Singer, defined undue influence as “[w]hen people use their role and power to exploit the trust, dependency, and fear of others. They use this power to deceptively gain control over the decision making of the second person.”
The types of psychological tactics used are also seen in other contexts, including domestic violence situations and religious cults.
In a legal setting, each state has statues or case law defining undue influence. For example, in California, Section 15610.70 of the Welfare and Institutions Code and Section 86 of the Probate Code establish several factors that must be evaluated to show undue influence. These include the vulnerability of the victim, the nature of the influencer’s conduct and the type of relationship involved.
Getting help dealing with suspected undue influence
If you believe that your family member or loved one created a trust while under undue influence, it makes sense to talk with a lawyer to learn what legal rights you have.