California Living Trust Litigation — Isolation as a Factor in Undue Influence

By: Roger J. Buffington, Esq.

Buffington Law Firm’s Trust litigation attorneys have often litigated cases involving issues of undue influence.  We discuss undue influence in several articles on our Firm website.

California Welfare and Institutions Code section 15610.70(a) defines undue influence generally as “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 and Institutions Code sections 15610.70(a)(1)-(4) go on to enumerate factors to be considered. They include:

1. The victim’s vulnerability, evidence of which may include “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.”
2. The influencer’s apparent authority, evidence of which may include “status as a fiduciary, family member, care provider, healthcare professional, legal professional, spiritual advisor, expert, or other qualification.”
3. The influencer’s conduct, evidence of which may include “(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.”
4. The equity of the challenged result, evidence of which may include “the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct orthe relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.”

One of the key indicators of a situation involving undue influence is isolation, i.e. a situation in which the perpetrator of the undue influence has isolated the victim from others, such as his or her children, family, or close friends.  Buffington Law Firm has often dealt with situations in which a perpetrator went to outrageous lengths to prevent the victim, often (but not invariably) an infirm elderly person, from having social contact with others.  Over time, this can make the victim much more vulnerable to “excessive persuasion” to do things such as make changes to the victim’s will or trust, deed property over to the perpetrator, or put the perpetrator on title to property, or other similar things.  When a third-party sees someone acting to isolate a loved one from other outside social contact, this is a warning sign.  We recommend that you do not ignore it.  These situations can lead to later disputes over testamentary decisions i.e. will or trust disputes or Financial Elder Abuse.

This kind of situation, where one person is acting as a “gatekeeper” to access to another, can lead to abuse.  Every situation is different, and it is beyond the scope of this brief blog article to discuss the precise solutions.  Sometimes Adult Protective Services can intervene.  Other times other family members need to establish social contact with the victim to in fact prevent the person from becoming an actual victim and to mitigate the isolation.  If the victim knows that he or she has others to turn to this can go a long way to mitigating unwholesome situations of isolation.

If you are involved in a situation you suspect may involve financial elder abuse or similar problems, we invite you to contact Buffington Law Firm for a Free Legal Consultation.  All consultations are with an experienced elder law litigation attorney, and are protected by the attorney-client privilege.  And there is never any obligation.