This is part three of a four part post discussing the newly created standard for proving undue influence directly in California Trust and Will contests.
Effective January 1, 2014, the California Legislature has introduced a new standard for proving undue influence directly (found at Welfare and Institutions Code Section 15610.70; and made applicable to the Probate Code by Probate Code Section 86), and it consists of the following four factors:
- The vulnerability of the victim,
- The influencer’s apparent authority,
- The actions or tactics used by the influencer, and
- The equity of the result.
We covered vulnerability and apparent authority in my last posts. Now let’s discuss the third factor—actions or tactics used by the influencer.
Actions or Tactics used by the Influencer. How do undue influencers act? Do they exert their abnormally strong influence out in the open for all to see? Not usually. In fact, the actions or tactics used by an undue influencer are so universally common that it represents one of the four factors for proving undue influence in California.
Under 15610.70(a)(3), evidence of actions or tactics of the influencer include:
- Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep;
- Use of affection, intimidation, or coercion; and
- 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.
Sounds a bit like a day-time soap opera. Unfortunately, this happens all too often in real life. The common effect of each of these items is to control the victim, conceal the wrongdoing, and coerce the victim into signing documents favorable to the influencer (the three “c’s”: control, conceal, and coerce). You do not need to prove all three of the items listed above, they simply provide an example of actions/tactics that come into play to prove undue influence has occurred.
The actions that are most troubling are (1) controlling necessaries of life and medication, and (2) using haste, secrecy, and initiating changes at inappropriate times. Not only are these actions evidence of coercion, they can be downright dangerous to the victim—especially the medication issue. For that reason, family members should be careful whenever these signs arise. Oftentimes, people will tell me after the fact that they thought something may be wrong, but didn’t know what to do about it. Simply put, take action if you think necessaries of life and medication are being manipulated.
As for proving undue influence, the more actions and tactics you can prove, the more likely you will be in overturning a California Will or Trust based on undue influence.