Monday, January 30, 2012

What Is Undue Influence In California Probate Courts?

As a law firm that focuses on probate and estate and trust litigation, we are seeing an increase in the number of allegations of undue influence in our cases. What do you do if you think a loved one is the victim of undue influence? Or what do you do if you are accused of exercising undue influence? Or what can you do to help prevent allegations of undue influence in the future?

Claims of undue influence can be difficult to understand and prove, both because of the lack of a definition in the Probate Code and because it occurs behind closed doors without witnesses. Increasingly, though, probate courts have staff such as investigators or visitors who go out and interview proposed conservatees and determine their circumstances, including the presence of apparent undue influence. Probate courts are also receiving more information from community practitioners such as Adult Protective Services social workers, physicians, and hospital discharge planners.

In California, the definition of undue influence is contained in California Civil Code §1575. This statute was enacted in 1872, a date which calls into question its application in the 21st century. Thus, probate judges in California lack probate statutory support when they must consider imposing a conservatorship on an elder who is allegedly being victimized by someone using undue influence. Additionally, we see that cases are not always handled consistently.

Complicating the picture is traditional thinking that mental capacity and undue influence are intrinsically linked. In other words, undue influence occurs only if there are deficits in mental functioning. Even though California law is clear that soundness of mind and body does not imply immunity from undue influence, the perception that undue influence cannot exist without mental deficits persists. Thus, if your loved one does not have mental deficits it may be more difficult to prove undue influence.

The first and most commonly invoked statute regarding undue influence is California Civil Code §1575, which was enacted in 1872 and is commonly cited as a definition of undue influence. The elements are:

1. The use, by one in whom a confidence is reposed by another, or who holds 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; and

3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

Pressure of some type is always a part of undue influence situations. In a seminal California case, Odorizzi v Bloomfield, undue influence was used against a person who was not an elder and had mental capacity. The court cited factors that indicated excessive pressure:

1. Discussion of the transaction at an unusual or inappropriate time;
2. Consummation of the transaction in an unusual place;
3. Insistent demand that the business be finished at once;
4. Extreme emphasis on the untoward consequences of the delay;
5. Use of multiple persuaders by the dominant side against a servient party; and
6. Absence of third-party advisors

More recent law is contained in California Welfare and Institutions Code §15610.30 et seq., which address financial abuse of an elder or dependent adult. In 2009, that section and others in the Welfare and Institutions Code were amended. The term u"ndue influence" was added. Section 15610.30(3) of the California Welfare and Institutions Code now states that financial abuse of an elder or dependent adult occurs when a person or entity does any of the

“Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriate, obtaining, or retaining, real, or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Probate Code §812, or by undue influence, as defined in Civil Code §1575, or both.”

Thus, undue influence is legally related to financial abuse. Section 15657.6 of the Welfare and Institutions Code—which references an elder lacking capacity (pursuant to California Probate Code §812) or being of unsound mind, but not entirely without understanding—states that a person or entity must return real or personal property if the elder or the elder’s representative demands it. Failure to do so in a timely fashion subjects the perpetrator to the same remedies available for financial abuse, namely, damages, attorney’s fees, and costs.

Although the California Probate Code does not contain a definition of undue influence, it does contain specific information as to determining deficits in mental functions in §811 and the capacity to make decisions in §812.

What do you do with this information regarding undue influence? If you or your loved one are in the planning stage, it may be wise to take steps to avoid such allegations in the future by involving an experienced attorney to guide you through the process. If you suspect undue influence, before you jump to allegations consult an attorney so you can make an objective assessment of whether you can prove your case. Probation litigation can be costly and a case should be evaluated by an objective attorney before you decide on a course of action. As our population ages, we can expect to see an increase in undue influence allegations in probate court.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga & Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.

With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm has two offices and consultations and meetings can be held at either office.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.