As of January 1, 2014, the California Legislature updated Probate Code Section 86 and changed the definition of “undue influence” and how it operates, especially when dealing with the elderly population. In this article I will be discussing what the change to the law is, how it operates, and how undue influence may operate under this new definition.
Changes to the Undue Influence in California’s Probate Code
The new definition of “undue influence” in the California Probate code is defined as excessive persuasion by one person that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. When looking at this definition, inequity is best described as a lack of fairness. So, in order to call undue influence one person has to use excessive persuasion on another person to cause that person to act or not act by overcoming that person’s free will, and that action results in some sort of unfair outcome.
In addition to providing a definition of what undue influence is, the new statute also requires four considerations to determine if undue influence existed. These considerations are the vulnerability of the victim, the influencer’s apparent authority, the actions used by the influencer, and the equity of the result.
2014 California Probate Code Changes
When examining the new statute governing undue influence it is important to remember that an inequitable result is not enough, and the above considerations must be given and have some weight in order to gain the undue influence finding. In practice, this means that actions directed in estate planning documentation do not have to be fair to all of those involved.
A final important consideration when dealing with the new “undue influence” definition is what undue influence looks like. As previously discussed, an inequitable result alone is not enough, but a grossly inequitable result that comes in opposition of some sort of long-standing arrangement may be. An example of this could be found in a will, where an established will is changed in a sudden manner to alter the beneficiaries in some significant way. Another possible example of undue influence could be found in a conservatorship where the guardian purchases assets from the person in the conservatorship under fair market value as a result of the influence exerted by the guardian.