Undue Influence - not really "influence" more "trickery" and unfair result.

Many practitioners and laypeople have confused what the legal term of art "undue influence" actually means.  It has almost come into the mainstream to commonly refer to "influencing" or "persuading" that results in a consequence that someone else does not think is “right.”  However, such influence is not necessarily "undue influence."  

In fact, undue influence has been interpreted in case law as the hijacking or overtaking of person’s free-will by another which causes a result that is “inequitable” as the result of “excessive persuasion.”  This often times results in an “undue” benefit to the abuser or someone the abuser wishes to benefit who is not the victim.  In other words, the victim would not have possibly taken such action but for the abuser’s “hijacking” of the victim’s free-will and the abuser would not have otherwise benefitted.  This can occur when the abuser is in a position of trust or authority over the victim and uses such power or authority to obtain an unfair advantage over the victim. 

It is almost like comparing the term "fan" and “fanatic.”  The term “fan” is used to refer to a person who supports one team or is an enthusiast for a team or a cause.  The term is actually derived from "fanatic," which is quite different and associated with someone who is motivated by an extreme, unreasoning enthusiasm, as for a cause.  In other words a fan is okay and acceptable in society.  A fan tends to be someone who is an alumni of a particular school, provides support for that school, and yet wishes all schools good luck and success.  A fanatic is likely someone who never went to the school, doesn’t know much about the school, but is obsessed with the school and hates all other schools simply because it is not the one “right” school.  The fanatic often has bad intentions towards people who are not on his/her side and wishes ill or harm on the competition and non-fanatics of that person’s team or cause.  One form is normal or an accepted “every-day” occurrence; the other is an extreme and not acceptable.

Similarly, the comparison can be applied to one who influences and another who unduly influences.  Telling a person’s parent that you love them, wish for them to be well, suggesting they downsize or upsize, suggesting they spend their money while alive, live their dreams, or provide for their family is likely not undue influence.  Providing a parent care, love, and affection and receiving a substantial gift as a result may not be “undue influence” either if that was what the parent intended without your pressuring them to do so and if such gift is “equitable” under the circumstances.  For example if you provide $20,000 worth of care, but have no car and tell the parent you need a car to continue providing care and that parent buys you a $15,000 car or pays you $15,000, then that does not appear to be undue influence.

Telling a person’s parent that they better give you all their money so you can protect it because “no-one can be trusted” and that only you can be trusted, or, telling the loved one that their trusted family members, friends, attorney, broker, doctor, or other professional of 30+years is dishonest (even though you have no proof or evidence) suggests undue influence.  Providing no care for a parent, but suggesting you could really user $300,000 yacht (when never having received a yacht before) or visiting on the holidays and “begging” for thousands of dollars to pay off debts suggests undue influence.

As one can see, separating influence from undue influence requires careful attention and analysis.  Simply getting a large gift, even one that you may have indirectly asked for, is not necessarily undue.  

If you believe that you or a loved one may be at risk of undue influence or may be a victim of undue influence then you should contact an experienced elder law attorney, such as the ones at Demiris & Moore to determine whether a conservatorship or other legal action may be needed.