Protecting Clients and Their Estates from Undue Influence – Part 1: Understanding and Identifying Undue Influence | The Estate Lawyers

Introduction

A wealthy man with four adult children, three daughters and a son, left millions to his daughters when he died, but nothing for his son. Was that the father’s intention? The answer came after much acrimonious litigation culminating in a three-week trial. In the end, a jury found that the sisters exercised “undue influence” over their failing father to exclude their brother from his will and trust. Sadly, this, or some version of this scenario, happens too often. While the attorneys were successful in this instance, this type of case is not easy to prove. That’s especially true if attorneys aren’t accustomed or equipped to litigate complex trust and estate disputes.

In this three-part series we discuss — from our perspective as estate litigators:

1. Understanding and identifying undue influence.
2. Confirming undue influence and planning for action.
3. Knowing the difference between planning an estate and litigating a dispute.

What is undue influence?

Undue influence is when someone exerts excessive pressure on a vulnerable individual to alter their estate plan to benefit the influencer. These conditions define the existence of undue influence:

1. A confidential relationship between the parties
2. A suspicious circumstance surrounding the execution of the will
3. A substantial benefit to the alleged influencer
4. The testator’s susceptibility to undue influence

Attorneys must prove that the influencer exerted control over the testator’s mind and their legal documents, not that they simply nudged them, persuaded them, or merely had some influence over important decisions.

As an estate attorney, you will serve your client best if you know conditions that are most fertile for someone to exert undue influence; remain vigilant in assessing the conduct and motivations of various parties — from family members to caregivers to other attorneys; recognize red flags that signal the presence of undue influence; and, even before litigation becomes an inevitability, consult an estate litigator to get ahead of the issue.

Is undue influence more likely to occur in certain relationships than others?

Yes, history shows that undue influence occurs in the context of certain relationships, especially, of course, when the influencer has something of value to gain:

1. Family. When money is involved, it is common for family members to take advantage of each other, and older folks are often targeted.
2. Caretakers. Anyone who is reliant on someone else for basic needs — whether it is a relative or a paid caregiver — is at risk.
3. Professionals. Clients develop a bond of trust with lawyers, financial advisors, accountants and other professionals. This bond can be exploited.

How can estate planners get ahead of undue influence claims?

Someone is more vulnerable when they are suffering from poor physical or mental health, easily confused, isolated, and/or, as we said, dependent on the care of others. If you suspect an elderly person may be the victim of undue influence, check your suspicions against a list of red flags. Be wary of certain changes in a person’s life, such as:

1. Over-involvement. Is someone known or someone new exerting significant sway over an individual, applying pressure to make decisions, or pushing the testator to sign documents they don’t understand? In other words, is there a control freak in the testator’s orbit? There is a line between being vigilant for the good of an elderly person and manipulating them for personal gain.
2. Sudden changes. Have there been unexpected alterations to their will, estate plan, or other legal documents?
3. Unusual financial activity. Are you seeing uncharacteristic spending patterns or financial transactions? Any unusual or unexplained gifts or transfers of assets? Is the client being denied access to their financial information?
4. Behavioral shifts. Are you witnessing unusual or marked changes in behavior or habits, such as reluctance to discuss financial matters, isolation from friends and family, or from normally trusted advisors?
5. Living situation. Has the client made sudden changes in their living arrangements, such as where they live and with whom?

When an individual claims undue influence, pay attention to the alleged influencer’s conduct. When the will or trust was made, were they present, and did they suggest any changes? Did they select the drafting attorney or instruct the attorney about the elements of the document? Did they pick the signing witnesses? This kind of involvement may signal someone is over-involved in the estate, possibly for personal gain.

Act quickly if you suspect undue influence.

The longer it endures, the harder it is to tackle in real time or later prove in court.

What if undue influence is suspected?

Start by asking questions like these:

1. Was the influencer present when the will or trust was made?

2. Who originally suggested any changes? Was it the alleged influencer?

3. Who selected the estate attorney who drafted the document?

4. Did the alleged influencer know what was in the document before it was signed?
5. Did the alleged influencer instruct the attorney on the elements of the document?
6. Did the alleged influencer find the signing witnesses?
7. Is there solid evidence of a person’s vulnerability in the form of medical records or reliable witnesses of vulnerability and influence? Is there circumstantial evidence demonstrating an influencer’s control over the individual?

Take a look at the California Undue Influence Screening Tool (CUIST), a standardized assessment tool designed to help identify potential cases of undue influence, particularly in situations involving vulnerable adults. Developed by the California Elder Justice Coalition in 2016, CUIST is a valuable resource for attorneys, social workers and healthcare providers who work with at-risk populations.

The CUIST assessment is structured around four pillars of examination:

1. Victim Vulnerability. Is an individual’s susceptibility to undue influence due to factors such as age, physical or cognitive impairments, emotional dependence, or isolation?
2. Influencer’s Authority/Power. What is the potential influencer’s ability to control the victim, including their relationship, financial dependence or position of authority?
3. Actions/Tactics. What specific behaviors or actions indicate undue influence, such as isolation, manipulation or coercion?
4. Unfair/Improper Outcomes. Do the outcomes of the situation appear suspicious or inconsistent with the victim’s wishes or best interests?

Following these steps will guide your initial assessment as to whether the testator or trustor is being unduly pressured by an influencer.

Sources

1. Estate of Wilson v. Wilson (1954): This case established a three-element test for undue influence: (1) a confidential relationship between the parties; (2) a suspicious circumstance surrounding the execution of the will; and (3) a substantial benefit to the alleged influencer.
2. In re Estate of Davis (1964): This case refined the Wilson test by adding a fourth element: the testator’s susceptibility to undue influence.
3. Estate of Canfield v. Canfield (1978): This case further clarified the concept of undue influence by emphasizing that it must be shown that the influencer exerted control over the testator’s mind and will rather than merely persuading or influencing them.
4. ABA: Undue Influence and Financial Exploitation
5. Upchurch Law Blog: https://www.upchurchlaw.com/blog/2022/may/how-to-prove-undue-influence/
6. Litigating an Undue Influence Case? Frieberg and Barres with Elman Frieberg. https://ef-law.com/wp-content/uploads/2022/05/Litigating-an-Undue-Influence-Case-Dec-2020.pdf
7. Jury Finds Daughters Used Undue Influence Over Father in $3M Estate Fight, ALM, https://www.law.com/dailyreportonline/2019/06/26/jury-finds-daughters-used-undue-influence-over-father-in-3m-estate-fight/
8. California Undue Influence Screening Tool, Elder Justice California, https://www.elderjusticecal.org/uploads/1/0/1/7/101741090/final_cuist_5-27-2016_12.4.18.pdf