What Is Undue Influence and How Can It Become Elder Abuse?
Individuals without the ability to consent may be victims of undue influence
“Undue influence” sounds like the title of a New York Times best-seller or a Hollywood movie about how greed, betrayal, and deception are used to change the “last will and testament” of a wealthy recluse.
It is important to note that “Undue influence” is often, but not always, applied to estate issues and the elderly. It is a legal term that covers anyone without the capacity to consent. This includes the mentally handicapped, as well as individuals who are temporarily or permanently impaired mentally or physically from a disability, illness, or even the use of drugs to the extent he or she lacks the ability to make rational decisions and/or engage in responsible actions.
In the world of elder abuse, “undue influence” is a specific legal term used when and the elderly individual is deprived of their free-will by anyone who has a confidential relationship with the elder; someone has taken advantage of to gain control over their property or assets.
If you suspect someone in your family is the victim of undue influence, you should speak to a lawyer who knows Florida law and the statutes governing it.
Who are the usual perpetrators of undue influence?
As you can imagine, they are usually people who have developed a trusted relationship with the victim. Here is the short list of common suspects of undue influence:
- Husband and wife
- Fiancé and fiancée
- Parent and child
- Trustee and beneficiary
- Administrator and inheritor
- Guardian and ward
- Attorney and client
- Doctor and patient
- Pastor and parishioner
- Friends and caregivers
Undue influence has often been associated with the estates of wealthy individuals, describing when friends and relatives want to get assets from an inheritance. It was a common theme among the rich and famous, but now it is happening more commonly; many folks have quietly amassed small to large fortunes over the course of their lives, and the overall population is getting older.
Undue influence usually involves money and assets
Suddenly, at the end of their days, friends, relatives, and associates show-up, hoping to get included in the victim’s will.
They see this as an opportunity to get what they feel is owed to them because of their relationship with the victim. Often, the motivation is as simple as the opportunity for easy money. They want gifts of cash, property, jewelry, cars, or other valuables. Or they may want to change the last will and testament so that they are bequeathed something from the estate of high value.
Undue influence occurs when victims have been manipulated through any act of persuasion that overcomes their free will.
How to establish undue influence
There are four elements necessary to establish undue influence in a general sense:
- The victim is susceptible to it; e.g., not having the capacity and/or ability to consent to the influence.
- There is an opportunity, such as having a confidential relationship that enables exercising undue influence.
- There is evidence that the suspect was using undue influence against the victim.
- You are able to reveal or prove a suspicious transaction between the parties.
When it comes to contested wills, The Florida Supreme Court defined elements that may be considered in some combination to establish undue influence (Carpenter’s Estate, 253 So. 2d 697, 702 (Fla. 1971)):
- The alleged undue influencer is a substantial beneficiary of the will
- The alleged undue influencer actively procured the challenged will/was present when the testator expressed interest in creating one
- The alleged undue influencer was physically present during the execution of the will
- The alleged undue influencer made a recommendation for an attorney to draft the will
- The alleged undue influencer provided the attorney instructions
- The alleged undue influencer had prior knowledge of the terms of the will before it was signed
- The alleged undue influencer gathered witnesses to the will
- The alleged undue influencer held on to the will before its execution
At first glance, it may or may not seem difficult to establish the elements of undue influence. In reality, it can sometimes be hard to prove.
When you file a lawsuit citing undue influence, it is your lawyer’s responsibility analyze evidence that the perpetrator aggressively initiated a specific transaction and that the victim was discouraged or prevented from seeking independent advice and/or otherwise not capable of giving consent, among other factors.
What is the psychology of undue influence?
The American Bar Association defines the psychological factors in undue influence as:
- Use of power and control
- Exploit trust, dependency, and fear
- Substitution of one person’s will for the true desires of another
- Purpose: deceptively gaining control
The bottom line is “self-determination;” when an individual is capable of making decisions on their own without the influence of another party. The courts consider “self-determination” to be a right, but only when it is balanced by capacity and consent. In fact, incapacity and undue influence are the two elements that can undermine self-determination.
Courts can invalidate contracts – making them unenforceable – based on undue influence
It can be difficult to determine if a person has the capacity to make their own decisions and maintain their free will, but the courts step in to help determine this. If an individual is deemed not capable, contracts can be invalidated. It’s difficult, but not impossible to prove.
Consider this factor as you interact with anyone who may have diminished capacity, specifically regarding any transfer of wealth. And be sure to look out for any loved ones who may be taken advantage of by a person of trust.
If you need assistance with estate planning or structuring enforceable contracts, contact Padula Bennardo Levine, LLP at 561.544.8900 or through our online form for a consultation.