Minami Tamaki’s Consumer and Employee Rights Group represent clients in trust and estate litigation matters, including cases involving financial elder abuse.  Fueled by the aging baby boomer generation, dramatic growth in the elderly population is expected over the next decade.  The increasing size of the elderly population, and the wealth that this population controls, has led to increased concerns of elder abuse.

Elder abuse extends beyond physical abuse and neglect, and often takes the form of financial abuse.  One of the most frequent causes of financial elder abuse is the use of undue influence.

Definition of Undue Influence

A testamentary instrument can be invalidated if it was the product of undue influence.  When an elderly, ill individual makes significant changes to his or her estate plan, questions of whether the changes were the result of “undue influence” may arise.

Under California law, undue influence is defined as excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.  California Welfare and Institutions Code § 15610.70.  “Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” Rice v. Clark, 28 Cal.4th 89, 96 (2002).  In California undue influence may be proven by circumstantial evidence.  Lintz v. Lintz, 222 Cal.App.4th 1346, 1354-1355 (2014).

Elements Necessary to Prove Undue Influence

Undue influence is proved by establishing (1) the wrongdoer was in a confidential relationship with the decedent, (2) the wrongdoer actively participated in procuring the Trust or Will, and (3) the wrongdoer unduly benefitted from the new document.

Confidential Relationship

There must be a confidential relationship between the party making the will and the person alleged to have exerted undue influence. Estate of Goetz, 253 Cal.App.2d 107, 115-116 (1967).

According to Estate of Rugani, 108 Cal.App.2d 624, 630 (1952), a confidential relationship exists whenever trust and confidence are placed by one person in the integrity and fidelity of another.

Active Participation

There must be activity on the part of the beneficiary in procurement of the will. Estate of Goetz, 253 Cal.App.2d at 115-116.

Active participation cannot be inferred when a beneficiary simply accompanies the testator to the attorney’s office. There must be evidence that the testator went there at the beneficiary’s instigation or request, or evidence that the testator was not acting in accord with his or her own desire. Estate of Lingenfelter, 38 Cal.2d 571, 586 (1952).

Undue Profit

There must be undue profit to the beneficiary. Estate of Goetz, 253 Cal.App.2d at 115-116.

Undue profit can be determined by taking a variety of factors into consideration. The court will evaluate the relationship between the decedent and the beneficiary. They will also consider the dispositions in previous wills and other past expressions of the decedent’s intent. Estate of Sarabia, 221 Cal.App.3d 599, 607 (1990).

Burden Of Proof

In most types of litigation, the plaintiff bears the burden of proof.  However, a plaintiff challenging a testamentary instrument on grounds of undue influence can in some cases shift burden of proof to the defendant when a presumption of undue influence arises.

A presumption of undue influence arises when the plaintiff shows: a confidential relationship existed between the testator and person alleged to have exerted undue influence, there was active participation of the person alleged to have exerted undue influence in procuring the instrument’s preparation or execution, and the person alleged to have exerted undue influence would benefit unduly from the instrument. California Probate Code § 21380 et seq., Rice v. Clark, 28 Cal.4th at 96-97.

Elder Abuse Claims

In undue influence matters, the legal claims alleging Elder Abuse often arise as a corollary issue.  This is important because elder abuse claims are given jury trials, allow for punitive damages, and allow for recovery of attorney’s fees to prevailing plaintiffs.

How We Can Help

Minami Tamaki LLP works to ensure that the rights of all elders are protected.  As California’s population ages, the threat of elder abuse will become an increasingly important issue across the state.

If you or a loved one have concerns about undue influence or financial elder abuse, you may contact us through our online form or call us at 415-788-9000 to set up a free consultation.