A Better Standard for Undue Influence. Staring January 1, 2014, the California Welfare and Institutions Code section 15610.70 created a “new” standard for undue influence. It is not really new because it simply codifies concepts that were previously known by way of judge-made common law. But for the first time, we have a four part test in our laws to determine undue influence. The four factors are:
1. Susceptible to Undue Influence.
This focuses on the mental condition of the decedent. When someone has a weakness of mind they are more likely to be unduly influence. A weakness of mind does NOT have to be lack of capacity, it can also be caused by illness, education level, or lack of cognitve abilities.
2. Apparent Authority.
This factor focus on the status of the wrongdoer. For example, a fiduciary (such as a Trustee of an agent under a power of attorney) has apparent authority over the victim and can more easily unduly influence them. The same is true for a doctor, lawyer, family member, clergy, anything where apparent authority is present.
3. Actions and Tactics.
This element focuses of the actions of the wrongdoer. This can includes controlling necessaries of life: food, water, sleep, clothing. Controlling the victims interactions with others and access to information. Use of affection, intimidation or coercion. Initiation of changes in personal or property rights with haste, at inappropriate times, or claims of expertise.
4. Equity of the result.
Was the final Will or Trust a fair result? Was there a substantial change in plans? These could prove an unfair result. Be careful, however, because equity alone is not enough to prove undue influence.
