Undue influence was previously defined in Section 1575 of the California Civil Code as the use of one in whom a confidence is reposed by another or one who holds real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him, or in the taking of an unfair advantage of another’s weakness of mind, or taking a grossly oppressive and unfair advantage of another’s necessities or distress. Previously the crime of financial elder abuse was defined by Welfare & Institutions Code §15610.30 to include the acquisition of property from an elder or dependent by undue influence.
A new definition has been adopted by the legislature, effective January 1, 2014, under Probate Code §86 and Welfare & Institutions Code §15610.70 as consisting of excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. The court must consider four factors in determining whether undue influence has been exercised, including the vulnerability of the victim, the influencer’s apparent authority, the actions or tactics used by the influencer, and the equity of the result.
The issue of undue influence often arises when an elderly person changes his/her will, trust, or other estate planning documents, or executes a conveyance of real property, when the elderly person is ill, frail, or easily influenced.
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