(B) Use of affection, intimidation, or coercion. In the case of Ms. K., there are a number of suspicious facts that would provide a rationale for a retrospective assessment of capacity and UI. Discovery: In discovery, the parties are able to gain access to documents and potential testimonies that the other side either has or intends to use at trial. Neighbors reported that Ms. K. had been less social, and reluctant to talk about her new friend/contractor. Another Will Trumps the One Being Executed If the executor is trying to carry out the provisions of an outdated will, the newer will can trump this older will. Trial: Trial is the formal process of presenting your case to the judge or jury so a ruling can be given. In this motion, you argue that there are no meaningful factual disputes for trial and that you deserve to win. Actual undue influence, as the name suggests, requires proof that the transaction was entered into as a result of actual influence exerted. The recent clarification of undue influence as excessive persuasion with guidelines for describing the dynamic provides a helpful framework for organizing and presenting these cases in court. Undue Influence is a legal construct that is defined in the, California Welfare and Institutions Code section 15610.70, By establishing that the victim was increasingly susceptible to undue influence and then outlining suspicious activities and exploitative tactics frequently used against the victim, attorneys can showcase an inequitable outcome designed to, The recent clarification of undue influence as excessive persuasion with guidelines for describing the dynamic provides a helpful framework for organizing and presenting these cases in court. When attempting to construct winning Undue Influence cases, it is vital to consult a well-educated and informed California neuropsychology forensic expert, such as Dr. Stacey Wood. To construct a winning undue influence case, seek the advice of a reputable neuropsychology forensic expert as you consult a law firm and build your support counsel. After about 2 months, he moved into the main home and developed a close friendship with Ms. K. She gave him permission to use her private plane housed at a nearby airport. Details of the type of vulnerability experienced by the victim, Details surrounding the special relationship between the victim and the other party, The specific acts done by the other party that took advantage of that special relationship and vulnerable status of the victim, Particular aspects of the transaction that make it unusual or suspect, Admit or deny each allegation in the petition, Open a heading for affirmative defenses, separating the defenses by number if you have more than one. Courts are inclined to find that testators had sufficient mental capacity to carry out their dealings and as such, most Undue Influence cases are dismissed due to lack of evidence. Last Updated: April 11, 2019 Undue Influence is a legal construct that is defined in the California Welfare and Institutions Code section 15610.70. Mediation/settlement conferences: Many courts encourage or require certain cases to attempt settlement prior to trial. Specifically, 15610.70 states: “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 transaction was fair to the victim. If you go to mediation, a neutral third person will try to help you reach this settlement. We’ve talked here before about what one needs to prove to make out a case of undue influence in a will contest. She was unaware that he remained in the community, was living in her home, and had access to all her of her financial resources. This article has been viewed 18,813 times. Professor, Psychology; Licensed Clinical Psychologist, CA. In the practice of elder law, winning undue influence cases is an almost Herculean task. Motions for summary judgment: This is where either the plaintiff or defendant attempts to convince the judge that there are no facts in dispute, and the judge only needs to rule on the legal issues. Doctor of Law, University of Wisconsin-Madison. 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. Undue influence is available for use in a variety of settings, though it is most often... 2. This article was co-authored by Clinton M. Sandvick, JD, PhD. Laws vary from state to state, but generally, to win a lawsuit charging that a will was written under undue influence, the person bringing the lawsuit must usually prove that: The will left property in a way that was not what would be expected—in other … In this matter, a settlement was reached that favored her sister and the case did not go to trial. If you are being sued on a contract that you want to avoid, you will plead undue influence in your answer, which is a defensive maneuver. The three factor test is as follows. In that case, the court talked about how hard it can be to show undue influence existed because there may not be direct evidence and there is "no precise formula." If you believe you or someone you care about was improperly convinced to execute a legal document, such as a contract or a will, there is something you can do about it. The tactics used by the influencer after about 6 months, Ms. K presented with increased,! 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