Principals and Income Gifts Flashcards
Undue Influence
California Approach
THIS IS RELEVANT IF THERE IS A TESTAMTENTARY TRUST; YOU SHOULD KNOW WILL DEFENSES!
California statutes define undue influence as excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and that results in inequity.
The court must consider four factors in determining whether undue influence has been exercised:
(i) the vulnerability of the victim,
(ii) the influencer’s apparent authority,
(iii) the actions or tactics used by the influencer, and
(iv) the equity of the result.
What is evidence of the Vulnerability of the Victim?
Evidence of vulnerability may include, but is not limited to: i
1) incapacity,
2) illness,
3) injury,
4) age,
5) education,
6) impaired cognitive function,
7) emotional distress,
8) isolation, or
9) dependency where the influencer knew of, or should have known of, the alleged victim’s vulnerability.
What is evidence of an Influencer’s Authority?
Evidence of apparent authority may include but is not limited to:
1) status as a fiduciary,
2) family member,
3) care provider,
4) health care or legal professional,
5) spiritual adviser,
6) expert, or other qualification.
What is evidence of an Influencer’s Conduct?
Evidence of conduct may include, but is not limited to the following:
(i) controls necessaries of life, medication, the victim’s interactions with others, access to information, or sleep;
(ii) use of affection, intimidation, or coercion;
(iii) initiation of changes in personal or property rights and use of haste or secrecy in effecting those changes.
What is evidenced used in Evaluating the Equity? of a result?
The court may look at the:
1) Economic consequences to the victim,
2) Any divergence from the victim’s prior intent, or
3) The appropriateness of the change in light of the length and nature of the relationship, among other considerations
