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Undue influence (UI) is a psychological process by which a person's free will and judgement is supplanted by that of another.  It is a legal term and the strict definition varies by jurisdiction.  Generally speaking, it is a means by which a person gains control over their victims' decision making through manipulation tactics and unfair pressure, typically for financial gain.  Historically, UI has been poorly understood, even in some legal circles.
Undue influence is typically perpetrated by a person who is trusted by the victim and is dependent on them for emotional and physical needs.  Caregivers are often found to have unduly influenced their patients, however, anyone in a position of trust and authority over the victim (e.g. fiduciary) may be guilty. This includes the victims' attorney, accountant, nursing home attendant, or even children.  UI is a process, not a single event. A manipulator may spend weeks, months, or even years before successfully unduly-influencing their victim. Anyone is susceptible to UI, but the elderly are particularly vulnerable.  Perpetrators of UI operate in shadow, enacting their manipulation behind closed doors where there are no witnesses. A person being unduly influenced may become withdrawn, depressive and passive. Physical signs of abuse may include unexplained bruising, scratches, and/or broken bones. Other signs may include missing or broken dentures, prescription eyeglasses, hearing aids or other assistive devices.
A distinction is made between the nature of capacity and undue influence.  In assessing capacity, the practitioner evaluates an individual's ability to competently perform tasks (e.g., execute a will or give medical consent). These assessments give insight to the functioning of the cognitive capabilities at that moment in time.  Conversely, screening for undue influence is focused on the process of events which occur over an extended period. To determine whether another person is leveraging unfair tactics on the victim, an assessment specific to undue influence is required.
Undue influence occurs in various circumstances including, but not limited to domestic violence, hostage situations, cults, prisoners of war, and dictatorships.  The common theme among these situations is the aspect of psychological manipulation. Traumatic bonding may occur between the victim and influencer, as a result, the victim may even defend the perpetrator. The effectiveness of cult tactics (e.g. Love bombing) on young and healthy individuals illustrates that anyone, regardless of mental status, is a potential victim of UI under certain circumstances.
Elderly Americans are living longer, and with this increased life expectancy, the prevalence of cognitive disorders associated with advanced age has also increased. A significant concentration of wealth is controlled by this aging demographic making them a potential target for exploitation. Modern families are becoming more complex and dispersed. Given these factors, the number of will contests involving undue influence is expected to increase.
Some factors have been identified that increase the likelihood of a person being susceptible to manipulation. Some of these factors include, but are not limited to:
A person seeking to exert undue influence on another person usually does so by leveraging their position of apparent authority. Some of these tactics include:
Lawsuits against estate planning attorneys have increased in recent years. Legal malpractice in trusts and estates is now considered to have the highest risk of exposure, representing 12% of all legal malpractice claims. Due to changes in privity laws, many states allow third-party beneficiaries to bring a lawsuit against an attorney who executed a will that is later deemed to be a product of undue influence. Experienced estate attorneys tend to be vigilant of "red flags" indicative of undue influence during the drafting and execution of a will. Because a will is the most important document most individuals sign in their lives, and it affects property rights for all time, the process should be taken seriously. Many attorneys incorrectly assume that estate planning is a simple area of law. Some less-informed attorneys believe estate planning to be a simple, fast, and easy way to make a quick buck, this could not be farther from the truth. An attorney involved in estate planning should exercise diligence and thoroughly document their work in the event they find themselves exposed to a malpractice suit. Ignoring indications of UI by the estate planning attorney can put them in a precarious position of needing to explain why they redirected a testator's estate while their client was unduly influenced.
Because of the secrecy and tactics leveraged by an influencer, direct evidence of wrongdoing is often impossible for the contestant of a will to produce. Access to the individual is typically controlled by the influencer so that friends and family are unable to observe the perpetrator engaging in manipulation, thus a challenger is often unable to provide direct evidence. In an effort to address this substantial power distinction, many states allow for the burden of proof to be shifted to the alleged influencer if certain requirements are satisfied. Jurisdictions vary as to the requirements, but in general, the burden is shifted when the combination of a confidential or fiduciary relationship with the donor and suspicious circumstances are found. Such circumstances include:
Once shifted, the proponent of the contested will is tasked with rebutting the presumption. The alleged influencer is required to prove that the testator made the will of their own volition, and was not under any influence at the time it was executed.
Undue influence originated from English common-law in a doctrine from 1617. Chancellor Bacon found that a woman who "worked on the simplicity and weakness" of an elderly man was guilty of undue influence.
A focus group and a panel of experts were tasked to undertake a study to develop a tool to assist Adult Protective Services, legal professionals, and health practitioners in identifying potential instances of UI. The experts included: (1) a licensed psychologist who specializes in forensic neuropsychology; (2) an expert in the criminal prosecution of elder abuse; (3) a probate attorney with extensive experience with conservatorships, estate planning, and undue influence; and (4) a professor of gerontology with expertise in elder abuse. The resulting product is referred to as the California Undue Influence Screening Tool (CUIST). The tool can be used to help identify instances of UI in all fifty states. The study revealed similarities in persons who were particularly susceptible to unduly influence such as:
Undue influence has been studied in the field of social psychology. The American Bar Association Commission on Law and Aging and the American Psychological Association have analyzed similarities between cult members and domestic violence. These accounts share an element of power distinction between the alleged influencer and the vulnerable adult.
Clinical models have been developed in an effort to assist clinicians and practitioners in determining if UI is present and to build a legal case. Some of the most prevalent models are discussed below.
The IDEAL model was developed by the psychiatrist Bennet Blum, M.D., it emphasized the social conditions frequently observed in cases of alleged undue influence. It focuses on five aspects:
The SCAM model was developed by Susan I. Bernantz, Ph.D., it contains four elements regarding undue influence:
The IPA analysis framework is the result of a task force formed by The International Psychogeriatrics Association called Testamentary Capacity and Undue Influence. It consists of reviews on international law and common legal definitions of undue influence. The authors noted risk factors which include:
Environmental risk factors
Psychological risk factors
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