Undue influence

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: • Age – Much like traditional scams, the elderly are especially susceptible to undue influence. • Terminal diagnosis – Being diagnosed with a terminal illness such as cancer typically causes the victim to experience stress and trauma which increases their susceptibility. • Depression – The effects of depression are pernicious and contribute to a person becoming predisposed to undue influence. • Dependency – When a victim is dependent upon the influencer for companionship, transportation, housekeeping, food, hydration, medicine, etc. • Diminished mental capacity – Mental function declines, particularly as a result of aging. A person having difficulty thinking clearly may look to another to think things through for them. • Substance use – Illicit drugs, alcohol, or prescribed medication may alter a person's judgment. Drugs can also cause addiction, and the influencer may leverage the addiction to control the person. The influencer may refuse to give the addicted person their pain medication unless the victim does things for the influencer they wouldn't normally do. • Recent bereavement – The death of a family member such as a spouse or child. == Tactics ==

A person seeking to exert undue influence on another person usually does so by leveraging their position of apparent authority. • Moving into the victims' home, changes in victim's spending habits, unexplained purchases, and/or using victims' credit cards. • Controlling the flow of information to manipulate the victim and their view of the world. Statements such as - "Your children aren't even around", "I'm the only one that's here for you, nobody else cares" or, "your friends are only coming around because they want to take advantage of you", are examples of relationship poisoning. == Legal malpractice in estate planning ==

Lawsuits against estate planning attorneys have increased in recent years. Experienced estate attorneys tend to be vigilant of "red flags" indicative of undue influence during the drafting and execution of a will. 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. == Presumption ==

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. 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. == History ==

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. == Research ==

The California Undue Influence Screening Tool 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 study revealed similarities in persons who were particularly susceptible to unduly influence such as: • Vulnerability of the victim - Age, weakened physical or mental state. • Dependency - Reliant on the influencer. • Isolation - The victim may live alone or in a remote area, suffering from family conflict or having no living relatives. • Fear - Instilling fear (e.g. threatening to place victim in a nursing home.) • Apparent authority of the influencer - The influencer will act as though that authority has been vested in them by the victim. Claiming to be the victim's spouse or romantic partner is another tactic an influencer may leverage to misrepresent themselves as having authority over the victim. • Manipulation - Leveraging opportunity and vulnerabilities to take advantage of the victim. Situations are exploited in which the victim relinquishes assets that the influencer desires. These can take many forms such as depriving the victim of sleep or controlling nutrition, hydration, medication, and enacting mental pressure and physical harm. Pressuring the victim to make changes to documents when they are in pain, confused, or have recently undergone medical treatment. • Process over time - Undue influence occurs over time. Influencers often learn to decipher their victim's needs and desires, they will leverage them to gain a foothold in the persons' life. • Deliberate isolation - Influencers work to isolate their victims in various ways. Some methods include, "poisoning relationships" with existing friends or family. Shielding the victim from their support network (e.g., friends and family). Firing existing caregivers, canceling medical appointments, treatments, and trips for medicine or care. • Result of consequences - Loss of assets, physical harm, neglect. Financial loss including home and/or savings. 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 of undue influence 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 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: • Isolation from friends and family • dependency on the perpetrator • emotional manipulation of the victim • the acquiescence of the victim as a result of the three previous factors • the financial loss of the victim The SCAM model The SCAM model was developed by Susan I. Bernantz, Ph.D., it contains four elements regarding undue influence: • Susceptibility of the victim • Presence of a confidential and trusting relationship between the victim and perpetrator • initiation (active procurement) of financial transactions by the perpetrator • monetary loss of the victim The IPA analysis framework 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 • social isolation • family conflict • dependency, especially if a change in circumstances occurred Psychological risk factors • physical disability • substance use • cognitive impairment • mental illness ==New Zealand==

Case law • Contractors Bonding v Snee: while Mrs Snee's son exercised undue influence over her, it has no legal impact on the relationship between her and Contractors Bonding regarding her mortgage. ==See also==