THE FOLLOWING IS A TRANSCRIPT OF THIS VIDEO. FOR MORE INFORMATION, CLICK HERE

Hi, this is Stewart Albertson with Albertson & Davidson. In this video, I want to talk about how we can support the claim, and meet our burden of proof, to show that undue influence took place.

Some of the markers that we look for are the actions by the person that we believe exerted or exercised undue influence over a decedent.  We want to look at this person’s place of business in the decedent’s life when the decedent was still living.  Did this person have control over the decedent’s access to food?  Did they have control over access to medications?  Did they have control over access to going to medical appointments to see physicians?  Did they have control over the financial information of the decedent?

We see these markers and we look at this person and we say, “did they take their place within the decedent’s life, where the decedent relies on them for many things:  their medications, transportation, food?  Did they take that and did they exercise undue pressure over the decedent to get the decedent to create a trust or a will that benefits them, at the expense of other people?”

The more we see these markers, the more that we see the undue pressure, such as a wrongdoer calling up a lawyer that the decedent has never met to make an appointment to create a new trust or a new amendment or a new will or a codicil to that will, to that person driving the decedent to the lawyer, to meeting in the lawyer’s office with the lawyer and the decedent to create the trust, to have multiple emails and texts with the drafting attorney to make sure that the trust or will is drafted according to the decedent’s wishes, those are all things that we see time and time again in these undue influence cases.

One thing that really helps us, in addition to everything I’ve just pointed out is the medical records. Do the medical records show that the decedent suffered from some type of mental incapacity, such as dementia or Alzheimer’s?  It doesn’t have to be dementia or Alzheimer’s, but that’s one we commonly see.  If the decedent is suffering from any mental incapacity issues, and you have all of those other things we’ve talked about, those elements we’ve looked at, where this person is in a position of power, that generally leads us to believe that that person exercised undue influence over this individual. If they’re receiving a lion share of the estate plan, or they are receiving more than they would have, absent the undue influence.

Those are some of the things we look at to determine if we can show undue influence took place during the lifetime of decedent, often shortly before the decedent passed away.

 

THE FOLLOWING IS A TRANSCRIPT OF THIS VIDEO. FOR MORE INFORMATION, CLICK HERE

Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you about one of more difficult set of cases we come across and I call these the “Difficult Don’t Miss Undue Influence Cases”.  Let me say that one more time – the Difficult Don’t Miss Undue Influence Case.

What is the difficult don’t miss undue influence case?  That’s where someone has exercised undue influence over your mom or dad while they are still living and mom and dad have not passed away.  And so the question is, what can we do to invalidate the trust or the will that the wrongdoer got created using – exercising undue influence over mom and dad?

These are very difficult cases and the reason they are is because it comes down to California law and capacity and where mom and dad fits in that capacity determination.  So, you can file what we call a conservatorship proceeding where you ask the court to put someone else in charge of mom or dad’s estate.  But, as you can probably imagine, if mom or dad has any capacity whatsoever, they don’t like being told that they don’t have capacity and they certainly aren’t going to like that you’re the one who is asking the court to find that they are not capacitated.  So mom and dad can become upset by this.

The person who’s the wrongdoer who is already unduly influencing your mom or dad, they’re going to take advantage of this situation and they’re going to point out to your mom or dad, that look, your son not only doesn’t love you and doesn’t like you, your son wants to take your capacity away.  You son’s trying to get access to your estate before you’re even gone.  This son of yours is a greedy heir and we see this again time and time in these cases where mom and dad are still living and somebody is exercising undue influence over them.

So what are you to do in these type of difficult cases?  Do you file for conservatorship and that’s why we call these the Difficult Don’t Miss Undue Influence Cases.  Because if you’re going to file for conservatorship, you have to win it.  If you don’t win it and mom and dad is capacitated – are still capacitated and a court finds that they’re capacitated.  Chances are if you were in their trust or will, you’re certainly not going to be in it now by way of an amendment or a codicil to the will.  And then you’re going to have a much higher hill to climb after your mom and dad die when you do bring a trust contest or a will contest.

So, what is a better option, perhaps?  And it’s hard, because, sometimes you have to sit back and do nothing while mom and dad are living.  And what we suggest to many clients is just focus on mom or dad in their sunset years of their live, give them comfort, give them care, give them compassion, spend time with them.  Don’t talk to them about their trust or their will.  Don’t talk to them about their assets – as difficult as that may be.  Because the person who is exercising undue influence over them will turn that against you and make it seem like YOU’RE the one that’s trying to get their assets.  YOU’RE the one that’s the greedy heir.  YOU’RE THE problem, not them.

So if you can, stay disciplined.  Focus on your parents.  Care for them in the sunset years, however many months or years they have left.  Then, once they pass away, there are remedies available to you, such as a trust contest, a hill contest, and financial elder abuse that you can file to remedy the undue influence that took place against your parents during their lifetime.

These are very difficult cases.  It’s very difficult to determine the best route to take.  Our advice is generally to err on the side of caution and that is wait till your mom or dad pass and then you can address the undue influence.

THE FOLLOWING IS A TRANSCRIPT OF THIS VIDEO. FOR MORE INFORMATION, CLICK HERE

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.

THE FOLLOWING IS A TRANSCRIPT OF THIS VIDEO. FOR MORE INFORMATION, CLICK HERE

Hi, this is Keith Davidson with Albertson & Davidson. In this video, I want to talk about some of the warning signs that you should be aware of to clue you in that undue influence might be taking place with one of your parents.

As lawyers, when we get undue influence cases we typically get them after everything’s been done and we’re looking at the facts in hindsight. But, as a child, there’s times when things happen, and you might be suspicious of what’s happening, but you’re not sure if it’s something bad or not. That’s what I want to talk about. These are the warning signs that really should be on your radar and start raising red flags when you see them.

For example, let’s say you have a parent, and you can tell that they’re kind of slowing down, and you notice that somebody (like a neighbor, a caregiver, or a stranger who you don’t even know), starts spending a lot of time with that parent at their house, and then they start helping the parent write checks or go to medical appointments. That could be a real red flag of somebody who’s trying to cozy into the parent and slowly take control.

Typically, the way undue influence works is: somebody starts off by being just a friend, and then a helper, and then they start taking over everything; check-writing, finances, medications, doctor visits, even communications. That’s another warning sign.

Let’s say that you are finding it difficult to talk to your parent. You try calling them and somebody else answers the phone and won’t let you speak. Or, when you talk to your parent, there’s somebody else who’s always on the other line, listening in. That’s a huge red flag that somebody is probably trying to control the flow of information to the parent. That could be a real problem. So that’s another big warning sign.

One of the elements of undue influence is that somebody controls the necessities of life; food, medication, all those sorts of things. So if you see somebody who you aren’t that familiar with, and they’re doing all the grocery shopping for your parent they’re making meals for the parent they might be doing something that’s really nice and maybe there’s nothing wrong with that, or they might be doing something where they’re controlling the flow of food to the parent which is one way to manipulate somebody who is old and not able to resist undue influence. But, that doesn’t mean that every time you see one of these things that it’s bad, but it definitely should raise your attention and you should look into it.

So those are some of the warning signs that you should be on the lookout for in possible undue influence against one of your loved ones.

 

Can you unduly influence someone NOT to take action?-2

Can you unduly influence someone NOT to take an action?  In nearly all Trust and Will disputes, an undue influence claim is brought to overturn a Trust or Will that was executed while the elder was unduly influenced.  But not every Trust and Will case turns on action, sometimes inaction can be just as damaging.

For example, sometimes parents get mad at their children (sometimes you ask?  Okay it happens all the time).  And to punish the child, a parent will rush to the lawyer’s office and amend the Trust or Will to reduce that child’s share or disinherit them altogether.

A few years go by, the parent and child make amends, and the parent wants to change the Trust and Will again to return the child to his full share of the estate.  But then, another child gets wind of this intent and tries to prevent it.  Maybe the other children had no problem with this one “trouble maker” getting booted out of the estate and thereby increasing everyone else’s share.

Undue influence is the use of severe pressure that causes the elder to replace his or her own intent with that of the wrongdoer.  Influence (of the undue variety) is not illegal.  Everyone is influenced every day by the people around them.  But undue influence is more sinister in that is supplants the intent of the elder completely.

Undue influence can be used to cause a person to act, or refrain from acting, in a way that overcomes the person’s free will.  (See Welfare and Institutions Code section 15610.70).

As a result, where a parent is kept from changing a Trust to add a disinherited child back into the estate, undue influence could be used to overcome the resulting distribution.

It is not just what a parent does, but what a parent does not do, that could form the basis of a Trust or Will lawsuit.

If you have an undue influence claim, here are the top five things you must consider in bringing your claim in court:

    1.  It’s a Two-Headed Monster

Starting January 1, 2014, the definition of undue influence was unified under Welfare and Institutions Code Section 15610.70.  That means the same facts and circumstances that you use to directly prove undue influence to overturn Trusts and Wills are also used (or usable) to bring a financial elder abuse claim based on undue influence.  So every Trust and Will contest becomes a potential financial elder abuse case too.  And elder abuse claims are given jury trials, allow for punitive damages, and recovery of attorney’s fees—all things you CANNOT get in a Trust or Will contest lawsuit.

    2.  Equity Isn’t Enough

An unfair result, by itself, is not enough to prove undue influence.  Unfortunately, a parent can treat a child unfairly if he or she chooses to do so.  Undue influence is essentially the replacing of the decedent’s intent with that of a wrongdoer.  So if the parent chose to act unfairly, so be it, the law has no problem with that.  If a wrongdoer coerced the parent into acting unfairly, then you may have undue influence.

    3. Shifting the Burden of Proof

Undue influence is one of the few claims where you can shift the burden of proof onto the wrongdoer to prove that they did NOT engage in undue influence.  But to do so, you first need to prove that (1) the wrongdoer was in a confidential relationship with the decedent, (2) the wrongdoer actively participated in procuring the Trust or Will, and (3) the wrongdoer unduly benefitted from the new document.

    4. You Still Need a Weak Mental State

The first element for undue influence is that the decedent was susceptible to being unduly influenced.  They do not need to be incapacitated, per se, just susceptible to influence.  The other elements focus on the actions of the wrongdoer, but you still need a medical expert to testify to whether the decedent was susceptible to undue influence.

    5. Undue Influence Requires a Good Back-Story

Anytime you are asking the court to overturn a Trust or Will, you need a compelling reason to do so.  California Trust and Will contests are decided by judges (called a bench trial) and judges are people too.  Most judges have seen it all, so while your case may seem outrageous to you, it is just another case to the judge.  And most judges want to reach the “right” result, which means your case needs to compel the judge to make things “right” by overturning the Trust or Will.  Judges are not compelled to do that just because you ask them to do so.  But they are inclined to act when presented with a back-story that shows that someone took an unfair advantage of a decedent.  Therefore, a good back-story of events that occurred leading up to the Trust or Will creation is vital to winning your undue influence case in court.

This is part four of a four part post discussing the newly created standard for proving undue influence directly in California Trust and Will contests.

Fairness.jpg

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:

  1. The vulnerability of the victim,
  2. The influencer’s apparent authority,
  3. The actions or tactics used by the influencer, and
  4. 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.

The Equity of the Result.  Equity simply means fairness.  In the undue influence context, equity means was the last Will or Trust a fair result?  The answer to that question can change depending on whom you ask.  The undue influencer will have a million reasons why the Will or Trust is fair; whereas the disinherited family members will disagree. 

But the law does not really care about unfair result per se.  In fact, Welfare and Institutions Code section 15610.70(b) specifically states “evidence of an inequitable result, without more, is not sufficient to prove undue influence.”  Wills and Trusts can be unfair—so says the law. 

As a factor of undue influence, however, an unfair result can establish proof of abusive behavior.  Specifically, evidence of equity for undue influence includes “economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.”  See Welfare and Institutions Code section 15610.70(a)(4).

In other words, a short relationship with a part-time caregiver who ends up with the entire estate may be inequitable from an undue influence perspective.  But leaving an entire estate to the testator’s spouse of twenty years may not be inequitable, even if it disinherits children from a prior marriage.  It all depends on the facts and circumstances.

Some of the evidence we typically look for includes a divergence from long-standing prior estate plans, benefitting people who have not been around long or who did not do much for the victim, or below-market transaction with the victim prior to death.  Each of these situations evidences a highly inequitable result, and can be persuasive in proving undue influence in Court.

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.

Stealing.jpg

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:

  1. The vulnerability of the victim,
  2. The influencer’s apparent authority,
  3. The actions or tactics used by the influencer, and
  4. 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:

  1. Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep;
  2. Use of affection, intimidation, or coercion; and
  3. 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.

This is part two of a four part post discussing the newly created standard for proving undue influence directly in California Trust and Will contests.

Puppet.jpg

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:

  1. The vulnerability of the victim,
  2. The influencer’s apparent authority,
  3. The actions or tactics used by the influencer, and
  4. The equity of the result.

We covered vulnerability in my last post.  Now let’s discuss the second factor—apparent authority.

Influencer’s Apparent Authority.  Under 15610.70(a)(2), “apparent authority” includes things like a fiduciary (i.e., trustee or agent), family member, care provider, health care professional, legal professional (uh oh), spiritual adviser, expert (not sure what type of expert, but an expert is stated), or “other qualification.”  Well that is a long list of people who could have apparent authority. 

This is not the first use of “apparent authority” in California law.  In fact, Civil Code section 1575 (dealing mainly with contracts) has defined undue influence for years as “the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtain an unfair advantage over him….”  (See Civil Code section 1575(1)). 

But what is the statute really getting at here?  Keep in mind that the entire concept of undue influence is where the independent free will of the testator is diverted by extraordinary and abnormal pressure.  (See Estate of Sarabia (1990) 221 Cal. App. 3d 599).  Apparent authority, then, is a factor to determine whether or not the pressure was abnormal enough to divert a testator’s free will.  In other words, a trustee, an agent, a family member, a lawyer, a pastor—all have the ability (given their close relationship to the testator) to exert an abnormal amount of pressure.  And that is what this factor is looking at, what is the relationship between the testator and the wrongdoer?  And is it the type of relationship where an abnormal amount of pressure would not be hard to exert?

For example, if your lawyer tells you that you must do something (like leave your entire estate to your lawyer) you are going to do just that because everyone always listens to his or her lawyer…right?  Well, maybe not.  But if the other factors listed above are present (such as vulnerability of the victim, actions of the influencer, and equity of the result), then having a lawyer tell the testator they must leave their assets in a certain way could influence that person to follow the lawyers instruction over the independent free will of the testator.  The same applies to a family member, care giver, or pastor.  The apparent authority, or confidence, someone has over the victim, can cause an increase in the potential for abuse. 

Apparent authority is just one factor.  Being a fiduciary, agent, or lawyer, by itself, is not enough to establish undue influence.  But as a factor, it holds an important point in proving undue influence in court.  So if you are trying to overturn a California Trust and Will, start looking for apparent authority evidence.

How do you know when influence becomes undue?  People influence one another every day, it’s part of being social.  But when influence crosses the line it becomes undue and that can cause a California Will or Trust to be invalidated.

Fragile Eggs

The problem is articulating the undue influence standard.  In California, we have two ways of proving undue influence—directly and by shifting the burden of proof to the opposing party.  The burden shift approach has a nice, concise rule; you have to show (1) a confidential relationship, (2) procurement of the contested Will or Trust, and (3) undue benefit.  Proving undue influence without the burden shift, however, has been a bit more confusing.  That is, until now.

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:

  1. The vulnerability of the victim,
  2. The influencer’s apparent authority,
  3. The actions or tactics used by the influencer, and
  4. The equity of the result.

The statute specially states that an inequitable result, by itself, is not enough to establish undue influence (Welfare and Institutions Code section 15610.70(b)).  The statute also claims that it is not meant to replace existing law and authority on undue influence (Probate Code section 86).  But (and this is a big but) this new standard will go a long way in streamlining the use of undue influence in California Trust and Will cases even where the burden shift elements are not present.  In other words, the muddy mess of undue influence law just became much clearer. 

What do these four factors really mean in the real world?  Let’s figure that out.  In this post I will address the first factor, vulnerability of the victim.  I will cover the other three in subsequent posts.

Vulnerability of the victim.  Under 15610.70(a)(1), vulnerability includes “mental incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.” 

In practice, dementia and Alzheimer’s disease are the most common mental conditions that create vulnerability.  And a well-trained medical expert can examine a decedent’s medical records and determine the level to which that person was susceptible to undue influence because the greater the mental impairment, the greater the vulnerability.

But the statute does not limit vulnerability to mental defects alone, which is an important point.  In other words, people can be susceptible to undue influence for any number of reasons even if they are not suffering from dementia.  The statute references illness, injury, education, emotional distress, and isolation as separate grounds on which a vulnerability claim can be based. 

In contrast, to prove a lack of capacity, the law mandates that you prove a mental defect is present (see Probate Code section 811).  Yet, the first factor of undue influence sidesteps this requirement—meaning that undue influence may be a more versatile claim to make than lack of capacity.  Undue influence may apply where there is no capacity problem at all.  But there still must be a vulnerability.  That means there must be some evidence present that demonstrates how and why the decedent was vulnerable to undue influence.

Since this statute is so new, we don’t have any appellate authority to further explain this factor.  But over time this factor holds a lot of promise for expanding the reach of undue influence claims in California.