The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 42, Issue 2.
Introduction
Undue influence has roots as a common law cause of action to challenge estate and gift transfers and is increasingly being recognized as a form of elder abuse and a cause of action in financial exploitation cases. Increasingly, states are clearly and unambiguously defining undue influence in statutes. However, many states still rely on case law or vague statutes to define undue influence. This article will explore the current state of undue influence law, review a model undue influence screening tool, and discuss ways to modernize the law.
Defining Undue Influence
A particularly clear definition of undue influence is found in the California's Welfare and Institutions Code §15610.70, meaning "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity." While the concept of undue influence is based in common law, an increasing number of states are beginning to define it in elder abuse, adult protective services and probate statutes. There are vast differences in how the elements of undue influence are defined in each state. These differences are especially evident in states that define undue influence through case law when compared to states that provide definitions through statutes.
A Model Screening Tool
California, has developed a screening tool for undue influence called the California Undue Influence Screening Tool (labeled CUIST for short). The tool provides four main factors to be evaluated when determining if the individual in question has been a victim of undue influence. The elements are 1: victim appears to be vulnerable, 2: suspected influencer appears to have power or authority over the client, 3: suspected influencer has taken steps suggestive of undue influence, and 4: the influencer's actions appear to have resulted in unfair, improper, or suspicious outcomes. Each of these factors are evaluated separately, with a checklist under each topic. For example, for the "Victim Appears to be Vulnerable" section, there are items that can be checked off underneath, such as "poor or declining health or physical disability", "depends on others for health care", "problems with hearing, vision, or speaking", etc., providing a long list of items that can be checked off. These checklists are available for each of the four factors.
This tool, created in 2016, is an incredibly helpful and thorough resource for understanding whether undue influence has been exercised by a person with authority to make an elderly individual do something they would not normally do. California's CUIST tool could serve as a model for other states to develop screening tools, and ultimately shape understanding in statutory updates. This would help identify undue influence in cases of suspected elder abuse, thus helping vulnerable individuals who are susceptible to these influences to become less likely to be taken advantage of. Incorporating the elements in the CUIST tool into statutory law would ultimately improve the clarity of the laws across all states.
Challenges of Case Law
Definitions of undue influence in case law tend to lack clear elements. Louisiana's case law on undue influence exemplifies this ambiguity, stating "undue influence is a subjective standard that is difficult to both define and prove" and "the proof of undue influence is either largely or entirely circumstantial." Most states using case law also mirror these sentiments. Delaware's definition for undue influence is "an excessive or inordinate influence considering the circumstances of a particular case" while Indiana's case law states that undue influence is "the exercise of sufficient control over the person, the validity of whose act is brought into question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised." These case law examples showcase the ambiguities that are widely present in undue influence definitions. Most of the time, undue influence (particularly with case law), is decided based on the circumstances of the case which are extremely variable. If there is not a specific list of elements that must be met in a state, then the courts often must guess which cases meet the criteria and which do not. Therefore, what constitutes "an excessive or inordinate influence" in Delaware or "sufficient control" over an individual in Indiana is highly subjective. This applies to most states with case law, and thus there is definite room for improvement, which could be made in the form of creating undue influence statutes so that the elements are less subjective overall.
Recommendations
Statutes, for the most part, provide clear examples of which cases meet the necessary criteria for undue influence. New Hampshire's statute clearly defines the elements of an undue influence case, stating "Undue influence means the intentional use, by a person in a position of trust and confidence with an elderly, disabled, or impaired adult, of that position to obtain an unfair advantage over the elderly, disabled, or impaired adult, through actions or tactics, including, but not limited to, emotional, psychological, and legal manipulation." These elements clearly define the elements needed for courts to decide if a case has met these criteria, as opposed to those that leave obvious ambiguities. Statutes like these can help immensely with undue influence cases.
Some statutes, however, still fall somewhat short in describing the necessary elements of undue influence. For instance, Connecticut's statute on undue influence describes the four elements of Undue influence as being (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence. The elements of this statute do not define why someone would be subject to influence, why the individual in question would have the opportunity to exert undue influence, and what result would indicate undue influence, and therefore could be improved. For states with statutes that are lacking full definitions or for states looking to develop statutes instead of using case law, California's CUIST model would be an excellent tool for states to use. If a state used CUIST as a guideline, it would provide a checklist for each element of Undue influence so that the statute being created would not be missing anything crucial to an Undue influence case, and if every state was to check their statute against CUIST, the state's rulings on these cases would be more aligned and less circumstantial.
Conclusion
Creating clearly defined statutory elements for undue influence will improve the identification of undue influence, while simultaneously protecting the most susceptible members of our society. Using screening tools and looking to models with clearly defined elements such as CUIST, can help states with this process. The result of creating clearly defined statutes for undue influence will be the protection of vulnerable adults, as well as more confidence that people in these legal circumstances are getting the correct and fair judgment.