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What is undue Influence?

When a will, trust or a contract is made – and made against your rights or interests – there can be the question of whether that document was signed because of the influence of others. All people are subject to the influence of others, friends, family, professional advisors. “Influencers” are now in a multi-billion dollar business.

The Legal question you face is whether that will, trust, or contract was signed because of influence that was “undue influence.”

Undue influence can come from anyone in a position of power. This undue influence is defined by “1. In 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 obtaining an unfair advantage over him; 2. In taking an unfair advantage of another’s weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.” (California Civil Code, § 1575.) “Undue Influence involves a type of mismatch which our statute calls unfair advantage. Whether a person of subnormal capacities has been subjected to ordinary force or a person of normal capacities subjected to extraordinary force, the match is equally out of balance.” (Myerchin v. Family Benefits, Inc. (2008) 162 Cal.App.4th 1526, 1540.)

“[U]ndue influence requires one party to ‘t[ake] some advantage of the mental weakness or incapacity of the other party’. The two elements act in balance. If either exists to a large degree, the second need not be so great.” Martinez-Gonzalez v. Elkhorn Packing Co. LLC, (2021) 25 F.4th 613. The undue influence argument, “cannot be used as a pretext to avoid bad bargains or escape from bargains which refuse to come up to expectations.” Odorizzi v. Bloomfield Sch. Dist., (1966) 246 Cal. App. 2d 123, 132, 54 Cal.Rptr. 533. Courts must instead determine “when the forces of persuasion have overflowed their normal banks and become oppressive flood waters.” Martinez-Gonzalez v. Elkhorn Packing Co. LLC, Supra.

When loved ones or family members pass away, their voices go with them. When a sick, dying, or elderly person, or a person dependent on others, makes material changes in an estate plan or gives property away, someone benefits, and someone loses. This oftentimes leads the survivors to question whether changes resulted from any “undue influence.”  In cases of undue influence where the elderly are concerned, Civil Code, § 1575 is often supplemented by the Welfare and Institutions Code which applies specific language related to caregiver duties.

To protect the elderly from undue influence, the California Welfare and Institutions Code section 15610.70 (a) states, “‘Undue influence’ means 1) excessive persuasion 2)causes another person to act or refrain from acting by overcoming that person’s free will and 3) results in inequity.” Under California law, there are two ways to declare a trust or will invalid based on undue influence. Under common law, there is a presumption that undue influence occurred if an interested party shows that 1) a confidential relationship between the testator and the influencer existed and 2) the influencer obtained the trust, and 3) the influencer obtained undue benefit from the trust.

Under the Welfare and Institutions Code, which protects the elderly, and the California Probate Code , which governs what happens to the property of a person after they die or become incapacitated, both the Welfare and Institutions Code section 15610.70 and Probate Code section 86 (which states “[u]ndue influence has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code” ), there are four factors that must be met to prove Undue influence.

“1. Vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where the influencer knew of, or should have known of, the alleged victim’s vulnerability.

  1. The influencer’s apparent authority. Evidence of apparent authority may include but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification
  2. The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in person 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 change.

  1. The equity of the result. Evidence of the equity of the result may include, but is not limited to, the 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. Evidence of an inequitable result, without more, is not sufficient to prove undue influence.”

Even with this four-factor test, the court still brings its own perspective to each. To help clarify, in 2016, the state created the CUIST or the California Undue Influence Screening Test. This test is a checklist to help Adult Protective Services (APS) personnel screen for undue influence. Every California County has an Adult Protective Services (APS) agency that helps older adults (60 years and older) and dependent adults (18-64) who are unable to meet their own needs or who are victims of abuse, neglect, or exploitation. The CUIST can help discover if undue influence was exercised by a person with the authority to make an elderly individual do something they might not normally do. The CUIST is structured within the same four categories that is relied on by section 15610.70: was the victim vulnerable; did the influencer have authority over the testator or appear to; did the influencer take actions or tactics to influence the victim, and did the result of the undue influence result in an unfair outcome.

If a spouse received an at-death gift, under the Family Code § 721, the surviving spouse was presumed to have unduly influenced the deceased. This presumption of undue influence arises whenever either party benefits from a transaction to the economic detriment of the other. In the case of Lintz v. Lintz (2014) 222 Cal.App.4th 1346, the court held that the children of the deceased were entitled to the inheritance based upon the current spouse’s presumed undue influence because “[i]f one spouse secures an advantage from the transaction, a statutory presumption arises under [Family Code] section 721 that the advantaged spouse exercised undue influence, and the transaction will be set aside.” With the 2020 adoption of Assembly Bill 327, the Probate Code language has been changed to allow the surviving spouse to be excluded from proving that the deceased spouse acted freely and voluntarily, with full knowledge of all the facts and with a complete understanding of the effect of the transaction to gain the benefit of the challenged inheritance. The new language, adopted into Probate Code section 21385, provides that an at-death asset transfer between spouses, whether by will, trust, beneficiary form, or other instrument, is not subject to the presumption of undue influence. The changes to the language of Probate Code section 21385 eliminate the presumption and is no longer subject to section 721.

The Digital Influencer

In the digital world, social media influencers can exert undue influence as well. Their actions are now regulated by the FTC and must abide by FTC rules and regulations for promoted content but also giveaways, promotions, and contests can trigger regulation by the United States Postal Service (specifically the application of the Deceptive Mail Prevention and Enforcement Act (DMPEA)), by the Federal Communications Commission and Securities Exchange Commission (SEC) and by the platform rules themselves. The SEC decided to make an example of Floyd Mayweather Jr. and DJ Khaled for promoting investments in a crypto currency company without revealing that they’d been paid for their endorsement. By not informing the public of the business relationship, they used their social influence to entice the public to invest, which unjustly benefited them. The SEC Enforcement Division co-director Stephanie Avakian said: “With no disclosure about the payments, Mayweather and Khaled’s promotions may have appeared to be unbiased, rather than paid endorsement,” and so it was that the influencers forfeited their fees, paid additional fines, and agreed to a multi-year ban on similar endorsements. Beyond FTC violations, there may be other consequences. If someone is harmed based upon the influencer’s recommendation, there could be causes of action for negligence, fraud, breach of express and implied warranty, or defective product theories under strict liability.

Undue influence from social media doesn’t just apply to Influencers. In Florida, the Judicial Ethics Advisory “prohibits a Judge from adding lawyers who appear in the Judge’s court as ‘friends’ and prohibits these lawyers from adding the Judge as a ‘friend’ as being violative of the canon that prohibits a Judge from conveying an impression, or allow others to convey the impression, that a person is in a special position to influence the Judge.” (261 P.3d 1185)

If you are involved in a situation of undue influence, take advantage of our precedent-setting experience with undue influence in tort, estate-related litigation, and social media law matters.