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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about undue influence cases. What makes a good undue influence case and what makes a not-so-good undue influence case? And let me just set this out as we meet with lots of people that come into our office saying, “Hey, I want to contest my mom or dad’s trust or their will because I know that my brother Bob exercised undue influence over my parents and I’ve been written out of the will or the trust and I will receive no inheritance and I’ve got the best evidence you’ve ever seen Mr. Albertson, or Mr. Davidson, and we’re going to come in here and we’re just, this is going to be a slam-dunk. You’re going to have no problem winning this case!”
The type of evidence you need to have a good undue influence case, it’s a high bar. The burden of proof that’s required for you is high. It’s not easy to invalidate a trust or a will. So that begs the question, “OK, well then what makes a good undue influence cases versus a not-so-good undue influence case?”
Well, let’s talk about some of the elements that you need to meet to prove that undue influence did, in fact, take place. One of the first things we have to show is we have to show that the decedent, your parent in this case, was a vulnerable individual. We can show that several ways. The most easy way to show that is that they’re over the age of 65 or they’re a dependent adult. So if they’re over 65, chances are, you could show that they have some vulnerable to them. The State of California has addressed financial elder abuse and said, “Look, we see a lot of financial elder abuse happening in our state, so we want to stop that. And so what we’ve done is we’ve set out some criteria for people to look at. This, these are the elements that we look to to prove an undue influence claim.”
The other way you can look to see if a person is vulnerable is what if they have some type of a medical issue? What if they have some diagnosis for dementia or Alzheimer’s or anything of the like that affects their mental cognition? That is something that also will support the element of the decedent being vulnerable.
We also want to look to other elements. What about the actions or the tactics of the wrongdoer? The wrongdoer is the person that exercised undue influence over the decedent. And a lot of times this is not something that you see that’s nefarious or evil or somebody yelling or screaming at the decedent, it’s actually done in a very nice manner. And it happens like this: The wrongdoer comes to the decedent while they’re still living and says, “How come your son, Johnny, doesn’t come visit you anymore? Oh, you know, I don’t think Johnny cares about you. It’s too bad that Johnny’s not here to take care of you like I’m taking care of you.” And it’s just done over time. And, of course, this person already – the decedent already is vulnerable, because they’re older, over 65 or older, they may have a health issue, and so now you have this person who is doing deceitful actions and tactics to influence the elder that their son Johnny really doesn’t care about them and we see this element time and again in a good undue influence case.
We also want to look to another element and that is what type of authority did the wrongdoer have over the decedent? And authority can come in many forms. Authority can be that this is the person’s agent, under their durable power of attorney, or maybe they’re already the trustee of the trust. They can also be somebody that the decedent relies on for their necessaries of live, such as daily medication. Somebody to drive them to doctor’s offices. Somebody to help change their diaper in bed. Somebody that makes sure that hospice is taking care of them. Here we see the decedent, the elder, is being very reliable on this person who has this apparent authority over them.
The last element that you want to flush out in a good undue influence case is there is an inequitable result. This is most easily shown in cases where the decedent had a preexisting estate plan that gave everything equally to all of their children. And we see this time and again. And then just before they die, they make a change to that trust that did give everything equally to all their children, and they give everything to one person, either one of their children or the wrongdoer who has come into their life and has now exercised undue influence over them.
So in order to have a good undue influence case, where you can meet the burden of proof which is a high bar in the State of California, you’re going to have to show that the victim was vulnerable, that the wrongdoer used actions or tactics that were deceitful, that the wrongdoer had apparent authority over the decedent, and the results that the wrongdoer got was inequitable. If you can pull all of those elements together through a totality of the circumstances and showing the evidence, you probably have a good undue influence case.