On Jan. 1, 2014, California amended its statutory definition of “undue influence” in section 15610.70 of the Welfare and Institutions Code.
This new definition of “undue influence” applies both to “financial elder abuse” that affects the victim while alive and also to undue influence that affect the victim’s “testamentary dispositions” after death.
Until 2014, proving undue influence often entailed proving the abuse of a “confidential relationship,” i.e., a relationship in which the victim trusted and confided in the perpetrator, “for the purpose of obtaining an unfair advantage.”
Now, “'undue influence’ means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity.”
“Excessive persuasion” does not require the existence of any relationship whatsoever between the perpetrator and the victim, although that is one of the specific factors to be considered.
The old focus on a confidential relationship was sometimes preventing enforcement of elder abuse cases where the perpetrator had no real relationship, certainly not a confidential relationship, with the elderly victim.
It is not always the case that a confidential relationship exists between the victim and the perpetrator.
Now what is necessary is to show that an “inequitable result” was obtained through excessive persuasion.
That is a facts and circumstances analysis that requires consideration of each one the following factors: (1) victim’s vulnerability; (2) the influencer’s apparent authority; (3) the actions or tactics used; and (4) the fairness of the results. Each factor is elaborated upon in the statute.
The new definition’s initial focus is on “excessive persuasion that overcomes a person’s free will.”
This derives from a long line of California decisions involving “will contests” where abnormal or excessive pressure either subverted or overcame the free will of the testator and resulted in a disposition contrary to what the testator would otherwise have done freely.
The definition’s back end focus is on “inequity” as the end result. However, “evidence of an inequitable result, without more, is not sufficient to prove undue influence.”
Otherwise, without that language, whenever one beneficiary inherited more than someone else who arguablely should have inherited as much it might be argued that such an uneven result is unfair, even if it was freely intended by the testator.
For example, take a father who leaves most of his trust estate to a favored child and less to other not as favored children.
The new definition applies both to abusive transactions that take effect during a victim’s lifetime and those that take effect at death.
These are very different spheres of abuse.
The former includes the scenario where the perpetrator, “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.”
The second includes the scenario where the perpetrator coerces the elderly person into devising an estate plan that gift assets in a way that is not consistent with his free wishes.
Much remains to be seen as to how the statute will be applied by the courts. This is especially true in regards to what is considered to be an “inequitable result.”
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 870 S. Main St., Lakeport, California. Fordham can be reached by e-mail at dennis@dennisfordhamlaw.com or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .
This new definition of “undue influence” applies both to “financial elder abuse” that affects the victim while alive and also to undue influence that affect the victim’s “testamentary dispositions” after death.
Until 2014, proving undue influence often entailed proving the abuse of a “confidential relationship,” i.e., a relationship in which the victim trusted and confided in the perpetrator, “for the purpose of obtaining an unfair advantage.”
Now, “'undue influence’ means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity.”
“Excessive persuasion” does not require the existence of any relationship whatsoever between the perpetrator and the victim, although that is one of the specific factors to be considered.
The old focus on a confidential relationship was sometimes preventing enforcement of elder abuse cases where the perpetrator had no real relationship, certainly not a confidential relationship, with the elderly victim.
It is not always the case that a confidential relationship exists between the victim and the perpetrator.
Now what is necessary is to show that an “inequitable result” was obtained through excessive persuasion.
That is a facts and circumstances analysis that requires consideration of each one the following factors: (1) victim’s vulnerability; (2) the influencer’s apparent authority; (3) the actions or tactics used; and (4) the fairness of the results. Each factor is elaborated upon in the statute.
The new definition’s initial focus is on “excessive persuasion that overcomes a person’s free will.”
This derives from a long line of California decisions involving “will contests” where abnormal or excessive pressure either subverted or overcame the free will of the testator and resulted in a disposition contrary to what the testator would otherwise have done freely.
The definition’s back end focus is on “inequity” as the end result. However, “evidence of an inequitable result, without more, is not sufficient to prove undue influence.”
Otherwise, without that language, whenever one beneficiary inherited more than someone else who arguablely should have inherited as much it might be argued that such an uneven result is unfair, even if it was freely intended by the testator.
For example, take a father who leaves most of his trust estate to a favored child and less to other not as favored children.
The new definition applies both to abusive transactions that take effect during a victim’s lifetime and those that take effect at death.
These are very different spheres of abuse.
The former includes the scenario where the perpetrator, “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.”
The second includes the scenario where the perpetrator coerces the elderly person into devising an estate plan that gift assets in a way that is not consistent with his free wishes.
Much remains to be seen as to how the statute will be applied by the courts. This is especially true in regards to what is considered to be an “inequitable result.”
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 870 S. Main St., Lakeport, California. Fordham can be reached by e-mail at dennis@dennisfordhamlaw.com or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .
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