November 13, 2020

Book Review: Undue Influence and Vulnerable Adults

Undue Influence and Vulnerable Adults – Sandra D. Glazier, Thomas M. Dixon, and Thomas F. Sweeney

Undue Influence and Vulnerable Adults – Sandra D. Glazier, Thomas M. Dixon, and Thomas F. Sweeney

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The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 42, Issue 2.

Undue Influence and Vulnerable Adults – Sandra D. Glazier, Thomas M. Dixon, and Thomas F. Sweeney

Reviewed by David Godfrey, Senior Attorney, ABA Commission on Law and Aging

Undue Influence and Vulnerable Adults is a must have reference work for attorneys who do estate planning, or probate litigation, and for advocates assisting victims of abuse and exploitation.  The book published by the ABA Real Property Trust and Estate Law Section, packs a ton of content into 182 pages of text.  The primary goal of the book is to help attorneys practice defensive estate planning and to provide an understanding of litigation claiming undue influence, fraud and duress. The book will also be very helpful for attorneys and other advocates working with survivors of abuse and financial exploitation. 

Undue influence is a theory of the case or claim used to try to set aside a transaction or estate planning document. Undue influence is a tool of abuse or exploitation as well as an element in civil and criminal cases of exploitation or fraud.  The book is a deep dive into a very narrow area of the law. The primary focus of this book is on the estate planning and probate, but the explanations in the book will be of great value to anyone trying to understand undue influence in any setting. 

The opening chapters of the book explore the ethical obligation of a lawyer to engage in ongoing assessment of client capacity and the basics of capacity assessment.  This section defines capacity and communication with extensive references to the ethics standards in the Model Rules of Professional Conduct.  For me these opening chapters were filled with passages that confirmed and expanded my understanding of the ethics rules and principles of capacity, areas of the law I have been working on for over 20 years.     

The book clarifies the distinction between claims of lack of capacity and undue influence.  When lack of capacity is proven to the court, the document is void back to the moment of execution.  A document created under undue influence may be set aside by a Court at a later date, but was valid at the time it was created – meaning that the person must have capacity at the time the document was created under undue influence.  If you prove lack of capacity at the time of execution, the claim of undue influence fails, but the person challenging the transaction will prevail anyway, based on the finding of incapacity.  

Each state has a unique definition of undue influence in case law or statute.  Researchers in law, psychology and social sciences have also developed definitions, models and screening tools for undue influence.  The text focusses on four  common elements, 1) a person who is vulnerable, 2) an influencer in a position of power or authority, 3) evidence of an effort to exert influence, and 4) an outcome that benefits the influencer, is unexpected or unfair.  There are detailed lists of red flags or indicia of undue influence in the text. 

The book does an excellent job of describing the differences between undue influence, fraud and duress.  Undue influence is the exertion of influence to an extent that it overrides the will of the person. Fraud always includes an intentional lie or misleading statement that is relied upon, and duress consists of external circumstances that interfere with a person’s normal decision-making process. Undue influence may include an intentional lie but does not always do so.  Duress may be caused by the actions of a perpetrator or by external factors that are taken advantage of to get the person to do something they would not otherwise do.  Each of these claims has distinct legal elements.  This book focusses on undue influence and offers a solid basic understanding of all three concepts.

Unless you are a career litigator, the chapters on prima-facia-cases and presumptions, and privilege will make your head spin. Nevertheless, reading these chapters will help the non-litigator understand the complexity faced in asserting a claim of undue influence. 

A person challenging a document based on a claim of undue influence often lacks firsthand knowledge of the facts surrounding the creation of the document. To level the scales of justice some states have established a prima-facia case standard. In a prima facia case, the person challenging the document is asked to present sufficient evidence of a core set of elements. If that is accomplished, the case will survive motions to dismiss and move onto the trier of fact. Other states use an evidentiary “presumption” that once basic elements are established, the burden of production of evidence or the burden of proof shifts to the person defending the document.

The chapter on privilege explores various rules and theories for overcoming attorney client privilege in evidence law. The lawyer that counseled the client or created documents may have critical knowledge of circumstances in an undue influence case but is constrained from disclosing that information because of attorney client privilege. The privilege can be waived by the client, and in some cases by an agent or other fiduciary. Some court rules and evidence rules have special provisions that allow the privilege to be pierced.  A waiver or court order compelling evidence or testimony overcomes the confidentiality requirements in the ethics rules.

These are very complex litigation concepts that are heavily fact-based or specific to local law or rule.  The chapters will help litigators understand what they need to look for in their case.  For non-litigators, these chapters will aid in understanding the complexity of these issues.  

Throughout the book are ideas of how attorneys can protect their clients and themselves from becoming embroiled in undue influence and other claims.  The book reinforces the role of the attorney as a counselor, not a scrivener. Attorneys are urged to take time, ask questions, and document answers to confirm capacity and to assure that the decisions clearly reflect the wishes of the client.  Tips on documenting the file, first to avoid challenges and second to prepare for a vigorous defense to any challenge are spread throughout the book.  There are chapters on the use of medical experts and on the pros and cons of recording signings.   

The last chapter previews the risks of undue influence and fraud in the brave new world of electronic wills, electronic signatures, and remote witnesses and notaries.  The chapter raises questions, many unanswered, about providing safeguards for e-docs and e-signatures. 

I recommend this book if you are interested in the issues of undue influence, fraud and duress.  It is priced as a professional reference work, at $129.95 with discounts for ABA Members and RPTEL Section Members, and Shop ABA has periodic sales. You can find details at https://www.americanbar.org/products/inv/book/392767696/.  

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