Undue Influence and Financial Elder Abuse Study Group Notes

							                         Elder Abuse Office
                Area Agency on Aging of Dane County

      Undue Influence and Financial Elder Abuse
                 Study Group Notes
                                  2002


What is undue influence?

…the concerted, deliberate effort to assume control over another person’s
decision-making rendering financial transactions by victims illegal.

…one person taking advantage of another.

… mental competency status exams do not assess susceptability to
influence.

….a process, not an action, event or condition.

…a series of interactions by powerful “influencers” who use their power
and authority to play upon the vulnerable person’s fears, loneliness, and
disability.

…requires use of expert witnesses…


How is undue influence determined or assessed?

The Salway Case in Wisconsin Court of Appeals involved a 77 year old
widow with no children who also had minimal contact with family
members. The woman’s estate decreased from $158,752 to $35,658 over
a period of less than one year. The primary gift of $80,000 was to buy a
home for a younger friend – a 47 year old woman- whom she had known
for many years (at least 30]. She also paid some mortgage payments.
The case was brought because the widow was found to be incompetent
and private human services agency was named guardian The agency
brought this undue influence action. . The widow’s attorney testified in
support of the action. The case was upheld and the perpetrator was
ordered to pay the estate $90,707 plus costs.

It describes a method for proving undue influence:

1.    Establish four elements

      a.    Susceptibility -

            Factors to be considered:
      1)   Age
      2)   Personality
      3)   Physical and mental health
      4)   Ability to handle business affairs

      These factors together must demonstrate that the
      individual was unusually receptive to the suggestions
      of others, and….
      consistently deferred to them on matters of
      utmost importance.

      (In Salwey Case, even though she was strong
      minded, she was influenced by others]

      Prior pattern of responsibility or thriftiness
      Before influence. Not listed as a factor but cited
      In court decision.

b.    Opportunity to influence

      Assumes existence of a relationship that is close
      and may have had a long history (but not required)
      and includes actual and regular contact.

c.    Disposition to (Wrongly) Influence

      The appellate court example involved a tape recording
      made by the attorney of a conversation with the victim
      about her interactions with the perpetrator after the
      victim changed her will to reduce the amount given to the
      perpetrator. The discussion included mention of pressure
      put on the victim to pay the perpetrator’s $500/month to
      be her agent and to pay for the perpetrator's daughter to go
      to college.

d.    Coveted Result

      Factors include the naturalness or expectedness of
      the conveyance. “More than a result favorable to the
      person alleged to have exerted Undue Influence”.


Standard of proof: “clear, satisfactory and convincing evidence”

Note: If three of the four elements are established to that standard
Of proof, the fourth element needs only slight evidence