Undue Influence – I’ll Love You More If You Buy Me a Chanel Bag
Undue influence is often times a key factor in Trust and Probate Litigation proceedings.
Here is the classic undue influence case: Old man, Carl, and old woman, Lucy have 2 kids. Unfortunately, Lucy dies at 75. After some mourning, Carl gets back on his feet. Carl decides that he still has a lot of life left in him. And while he can be off his rocker at times, he is still very witty, charming and intelligent. On one lucky day Carl meets a younger woman, Barbie, who is intrigued by his wit and charm. The two of them hit it off immediately. Barbie makes Carl feel like he is finally coming into his own. He feels like a new man. A romantic relationship ensues and Barbie and Carl travel the world. Barbie sees Greece for the first time, and although Carl has seen Greece before, he sees it from a new perspective with Barbie. During their travel around the world, Barbie looks at Carl with her big beautiful round . . . eyes, and “asks” Carl to buy her a few Chanel bags, a few pairs of Louboutins and several Herve Leger dresses so that she can look good for him. He was reluctant at first. However, after some thought, he said, “I can’t take the money with me! Why not?” Like many other men have done before, Carl bought Barbie many nice things during their travel. After a few months, the couple goes to Vegas and gets married.
But now Barbie says to Carl, “Carl bear, how am I going to continue to live this lifestyle if/when you die? Who will take care of me and put a roof over my head? You don’t want me to be out on the streets, do you?” Carl says, “Barbie bear, do not fret, I will call my attorney and have him change my estate plan and make sure you are taken care of for the rest of your life.” Carl calls his attorney, and says he has a new wife, and would like to make changes to his trust. Like before, he leaves everything to his wife (except now it’s Barbie, not Lucy), and then whatever is left after Barbie dies, will be left to his kids. Of course, Barbie is actually younger than Carl’s kids, so the chances that they will ever see any of that money is unlikely.
Unfortunately, Carl dies shortly after his changes to his estate plan. Carl’s children quickly learn that Barbie is the only beneficiary of Carl’s estate. The kids are outraged! The kids meet with Barbie and call her every name in the book. The kids argue that Barbie used her ways of persuasion to overcome Carl’s will (undue influence). Barbie exclaims, “I did no such thing! Carl loved me and he wanted to lavish me with gifts and take care of me.”
The two sides each hire the best Orange County trust and probate litigation attorney they can find and take it to court.
So, I ask you, did Barbie use “undue influence” to cause Carl to change his estate plan? YOU DECIDE! Read the legal definition below and vote!
New Definition of Undue Influence
Under the new Code section, “undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.
The statute then states that the following are to be considered in determining whether a result was produced by undue influence:
(1) The 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, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) 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.
(3) 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 personal 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 changes.
(4) 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.
The new legislation states that evidence of an inequitable result, without more, is not sufficient to prove undue influence.
You Be the Judge
Prevent Undue Influence
If you or a loved one are in a situation where undue influence is a potential issue, or if you foresee an undue influence situation happening in the future, many of these issues can be appropriately handled while the person is still living. Once the person dies, you are left with an attorney, like an Orange County estate planning attorney at Modern Wealth Law, to argue the applicable case law and the ambiguous definition above, in defense of your position.
John Wong advises on all aspects of estate planning, probate, asset protection and trust administration. He believes that estate planning is about planning for life; while having protections in place should the unexpected occur.
