Many states do not have specific statutes or definitions regarding undue influence regarding estate planning. However, according to the American Bar Association, California recognized that lack, and two research studies subsequently revealed that although the term “undue influence” appeared over two dozen times in probate code, the only official definition was one that dated back to 1872.
Today in California, a judge may consider four different elements of undue influence when evaluating a probate case:
- Vulnerability that is known or should be known by the influencer, including illness, injury, disability, incapacity, age, level of education, cognitive impairment, emotional distress, dependency and isolation
- Apparent authority of influencer, including fiduciary status, family member, health care or legal professional, caregiver, spiritual adviser or other ostensible qualification
- Equity of the outcome, such as the victim’s financial consequences, divergence from his or her expressed prior intent or conduct, how the value of the gift relates to the value of a service provided and whether the change seems appropriate based on the relationship between the victim and the influencer
- Influencer’s actions or tactics, such as using affection, coercion or intimidation; controlling social interactions, information access, medication or other life necessities; or initiating changes in property rights quickly or secretly, claiming expertise in making the changes or making changes at inappropriate places or times
Even if there does seem to be evidence of vulnerability, authority, inequity and inappropriate actions, or if none of these factors are present, the judge does not have to rule one way or the other. Rather, these elements are a guideline in assessing the specific circumstances of a case.
According to one of the studies performed by the California court system, one of the reasons to identify the elements of undue influence is that the percentage of the population over the age of 60 is expected to be at 14% by 2020, an increase of 112% since 1990.
