In deciding whether the testator was influenced, the court considers many factors, such as how the testator, the will contestant, and the alleged influencer are related; whether the alleged influencer had an opportunity to exert influence; the circumstances under which the will was prepared and executed; the alleged influencer's motive; and whether the testator was habitually subjected to control. The sad yet heroic tale of Mickey Rooney remains a prime example of how one can fall victim to undue influence even where no significant mental restriction exists. (AB 140) Effective January 1, 2014.). Evidence of vulnerability may include, but is not limited to, 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. Importuning (insistently bothering someone to do something). These include the con artist, the psychologically damaged person, the perpetrator, and the devious person. 1. (3) The actions or tactics used by the influencer. The daughter, not an attorney, actually prepared the will leaving everything to herself. Please complete all required fields below. However, as our elderly population continues to grow states, including California, have responded with legislation that allows family members to pursue litigation in situations where a loved one may be of relatively sound mind and body yet susceptible to undue influence for other reasons. (2) The influencer’s apparent authority. If the abuser has frequent private access to the victim, e.g. Undue influence is a doctrine which evolved from common law. Historically, undue influence cases have been more frequently prosecuted in situations wherein the victim suffers from Alzheimer’s, dementia, schizophrenia, stroke symptoms, or other mental conditions, and the existence of these diagnoses will make undue influence easier to prove, but it is not absolutely necessary. 3. This person is aware of potential monetary situations for someone and strives to divert the funds to themselves. When these factors are present is when the likelihood of potential undue influence will increase. 2. Give us a call anytime: (424) 320-9444, or email: hello@rmolawyers.com, RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. (B) Use of affection, intimidation, or coercion. gtag('js', new Date()); You should consult an attorney for advice about your specific legal matter. Four elements must be shown to establish undue influence. window.dataLayer = window.dataLayer || []; Conditions such as a physical disability, physical dependency, and psychological or mental conditions may be used to show susceptibility. Exhortation (strongly urging someone to do something). This person does not start out with bad intentions but over time comes to realize they can exploit another individual for their own gain. There are no comments for this post. In probate law, we commonly see abusers exercising undue influence over victims to obtain a larger inheritance, either after the abused passes but all-too-often both before and after they pass. Proving the Elements of Undue Influence. The daughter kept her mother's whereabouts secret from her half-siblings for the last year. a hospital room, caregiving facility or living with a loved one, which then results in the victim being isolated and then making unnatural and inconsistent changes to a will or trust this is good starting point when trying to establish undue influence. Records must disclose a suspicious or otherwise unnatural transaction. Was this document helpful? Want High Quality, Transparent, and Affordable Legal Services? Most of the time, successful prosecutions have proven the victim is vulnerable to undue influence because of a weakened mental state. In most families one child has more needs than another, and often an elderly parent will help that child, seemingly too much in the eye of the child who does not need the help.