On September 28 I will be joining Charles Ticker, Charles Wagner, and David Smith in a panel discussion on ‘Dealing with Undue Influence Issues’ as part of the 2016 Practical Guide for Legal Professionals – ‘Advising the Elderly Client’ conference hosted by Osgoode Hall Law School in Toronto. I will be addressing the issue of vulnerability to undue influence.
Although the traditional legal view of undue influence requires coercion,[i] [ii] the definition of undue influence may be broadening to include psychological, emotional or social influence pressure or power, that overbears the volition and the wishes of the person influenced, so that what he does is not his own act.[iii]
There are two paradigms to the understanding of vulnerability to undue influence in seniors. One paradigm is vulnerability as a result of cognitive impairment; the other is vulnerability as a result of social relationships. They are separate paradigms, but not necessarily mutually exclusive and each tend to be connected to suspicious circumstances – see, for example, the court’s decision in John Gironda et al. v. Vito Gironda et al.[iv]
Vulnerability to undue influence as a result of cognitive impairment provides that cognitive impairment increases the vulnerability to undue influence[v] [vi] and the lower the cognitive status the less influence would be required to suggest that the individual was unduly influenced and therefore incapable to make a will or an inter vivos gift.[vii]
This may be particularly relevant if a senior with dementia has been influenced and coached in their decision and is able to “parrot” reasons for disposing of their assets in a way which favours certain individuals. Suspicion or paranoid ideation focused on one person who is a possible beneficiary can be exploited by a perpetrator who may fuel the paranoia and encourage exclusion of that person from the will. Careful probing is especially important if there is a proposed departure from previous wills or consistently expressed wishes, or if those who appear to be the proper objects of the person’s bounty are excluded.
The history of the parties’ social relationship is vital to an examination of vulnerability to undue influence. Vulnerability as a result of social relationships provides that the existence of some “special” relationship must be shown in order to support the presumption of undue influence.[viii] Three types of relationships are of concern: the fiduciary type, the reliant type and the dominant-subservient type. In any of the three, the relationship must be confidential and dominating to support the paradigm of increased vulnerability to undue influence.
Characteristic risk factors that predispose a senior to undue influence include:[ix] [x]
- advanced age
- female gender;
- widowed;
- living with abuser;
- dependence on abuser in fulfilling his or her emotional or physical needs;
- social isolation;
- recent family conflict;
- recent bereavement;
- middle- or upper-income bracket;
- financial autonomy;
- elderly person subject to intimidation – perpetrator induces dependency with fear of rejection if demands not met, or creates fear by threat of physical or emotional harm or abandonment;
- cognitive impairment or dementia;
- the testator has made a new will that is inconsistent with his or her prior wills;
- the testator has made testamentary changes similar to changes made to other documents such as power of attorney documents.
In summary there are four key factors in determining whether a donor/testator was vulnerable to undue influence that should be considered:[xi]
- whether a confidential and dominating relationship existed between the donor/testator and the person allegedly exercising the influence
- whether the donor/testator has risk factors for susceptibility to undue influence particularly cognitive impairment
- whether the confidant played some role, however indirect, in the formulation, preparation or execution of the gift/will
- whether the donor/testator made a gift or testamentary bequest to the confidant which appears unnatural
[i] Hall v Hall (1868) LR 1 P & D 481, 482.
[ii] Hall v Hall (1868) LR 1 P & D 481, 482.
[iii] Geffen v. Goodman Estate, [1991] 2 SCR 353 — 1991-06-27
[iv] John Gironda et al. v. Vito Gironda et al., (2013 ONSC)
[v] Frolik, L. A. (2001). The strange interplay of testamentary capacity and the doctrine of undue influence: are we protecting older testators or overriding individual preferences? International Journal of Law and Psychiatry, 24(2), 253-266.
[vi] Perr I. Wills, testamentary capacity and undue influence. Bulletin of the AAPL Vol. IX, No. 1
[vii] Ken Shulman et al; Am J Psychiatry 164:5, May 2007
[viii] (Lloyds Bank Ltd. v. Bundy, [1974] 3 All E.R.757)
[ix] Hall, R. C. W., Hall, R. C. W., & Chapman, M. J. (2005). Exploitation of the elderly: Undue influence as a form of elder abuse. Clinical Geriatrics, 13(2), 28-36.
[x] Horning, S. M., Wilkins, S. S., Dhanani, S., & Henriques, D. (2013). A Case of Elder Abuse and Undue Influence Assessment and Treatment from a Geriatric Interdisciplinary Team. Clinical Case Studies, 12(5), 373-387.
[xi] Ray D. Madoff. “Unmasking Undue Influence.” Minnesota Law Review 8, (1997): 571-630.
