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MENTAL COMPETENCE AND UNDUE INFLUENCE (Excerpts)
4.1 Introduction
4.2 Progressive Cerebrovascular Disease
4.3 Psychosis
4.4 Intoxication
4.5 Mental Retardation
4.6 Other Conditions affecting Competency
4.7 Incompetence to Contract or Convey
4.8 Psychiatric Testimony as to Witness Competence
4.9 Undue Influence
4.10 Recent Cases
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4.9 Undue Influence
Forensic psychiatrists are frequently called to determine if an enfeebled individual:
| 1. | Was incompetent on the day he took some crucial legal action, e.g., transferred the deed to his home to his most recent caretaker; substantially modified his will; or married someone forty years his or her junior; etc. |
| 2. | Acted not out of free will but because of undue influence. |
The first determination -- that of mental competence -- is based upon clear and crisp legal and clinical criteria and is usually made with relative ease. Even when the protagonist is no longer susceptible to a psychiatric examination (as for example in most will contests), the testator's cognitive capacities or lack thereof are readily apparent in the medical records and through interviews of disinterested parties who were close to him during the period in question. Thus, one can usually ascertain to a reasonable degree of medical probability if at a particular point in time someone had the mental wherewithal to know what they were doing, i.e., whether he knew the approximate dimensions of his estate and the identities and worthiness of his natural heirs.
Undue influence, however, is a far more amorphous legal concept than is mental competence, and one which lacks precise clinical parallels. It is generally understood to embrace: Any improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forebear an act which he would not do or would do if left to act freely; influence which deprives the person of free agency or destroys freedom of his will and renders it more the will of another than his own; mis-use of position of confidence or taking advantage of a person's weakness, infirmity, or distress to change improperly that person's actions or decisions.
A major barrier to making practical use of this definition lies in the fact that undue influence resides not only in the protagonist's mental state, but in his interaction with other parties. That is, unlike incompetence, which reflects a single protagonist's impaired mental/physical condition, undue influence refers to an adverse dynamic process between two or more people. As such, an interpersonal view is likely to be more helpful than the Diagnostic and Statistical Manual of Psychiatric Disorders published by the American Psychiatric Association, which addresses static psychiatric conditions entirely independent of their context.
Before attempting to put into practical, operational terms what it is that the author believes creates undue influence, a few words about the "baseline state" -- the normal condition wherein undue influence would be absent.
In all probability, there can be no undue influence, irrespective of the antagonist's motives, if the protagonist:
| 1. | Knows his own mind, e.g., "Hands off. What's mine is mine! I earned it, I spend it." |
| 2. | Can readily distinguish his interests from those of the antagonist, e.g., most teenage girls are suspicious of the motives of the date who solicitously suggests that if she consents to sexual union, she'll "be a lot more loveable." |
| 3. | Can distinguish a neutral, disinterested assertion, ("pass the salt"), from an active, persuasive one, ("How do you expect the eggs I'm cooking for you to taste any good if you won't pass me the salt!") |
That is, convincing the enfeebled or cognitively disabled protagonist to take some action he might otherwise not undertake is not necessarily undue influence -- it may simply be influence. It only becomes undue when the antagonist persuades in the service of his own interests, and the protagonist, for reasons of mental defect, incapacity or infirmity, lacks one or more of the three elements presented in the preceding.
In addition, undue influence, almost by definition, is invisible to the protagonist. We tend to resist persuasion, however well intended, when we see it coming. Conversely, people are far more likely to abandon their own views for those of another when unaware that someone is endeavoring to convince them to do so -- a maxim the advertising industry has long recognized. Indeed, had Marc Anthony come to the Roman forum and admitted up front that he was there to laud Julius Caesar and to castigate Brutus and the gang for assassinating him, the crowd would have sent him packing, or worse. Instead, he began his speech by assuring the senators that he had come "not to praise Caesar but to bury him," and then said a few things about Brutus which, on their face, appeared complimentary. The senators, thus disarmed, were much more vulnerable when Marc Anthony turned to his intended task of bringing them around.
In short, undue influence is likely when the protagonist has a weak position or no position at all, or doesn't know what his position is; if he cannot tell when his interests are opposed to those of the antagonist; and is unable to recognize that influence is being exerted.
Certain circumstances reliably increase the force or effectiveness of undue influence:
| 1. | The protagonist has developed a debilitating physical or mental disorder, |
| 2. | The protagonist is essentially isolated, save for the presence of the antagonist; or such contact with others that may exist is filtered through the antagonist (as is typical of cults). |
| 3. | The protagonist has become dependent upon the antagonist for the meeting of his basic needs, for emotional support, commerce with the outside world, access to other elements of his or her support system, etc. |
| 4. | The antagonist, by dint of character traits, intelligence, strength, social class, education, experience, etc., possesses a uniquely powerful persona relative to that of the protagonist. |
| 5. | The protagonist is utilizing medications or other chemicals which can alter his state of consciousness and diminish his will. |
It should be emphasized that undue influence does not require a finding of mental incapacity, although most contestants will allege both lack of mental capacity and undue influence as grounds to overturn testamentary or lifetime transfers of assets. That is, while a person with mental deficiencies is arguably more susceptible to manipulation, undue influence does not necessarily depend, from either a legal or medical perspective, on any finding of diminished mental capacity. Nevertheless, a person who falls victim to undue influence is often one whose psychological or social profile reveals a passive or vulnerable personality.
The California case of Estate of Baker, 131 Cal.App.3d 471, is instructive. Here, the Court upheld the jury's determination that, although the decedent, Dorothy Mae Baker, was of sound mind in making certain gifts and dispositions by will, each transfer was obtained by undue influence. There was no finding that the decedent was mentally incompetent, but there was ample evidence of her susceptibility to manipulation. The Court cited Estate of Olson, 19 Cal.App.379, 386 (1912), as follows:
"Soundness of mind and body does not imply immunity from undue influence. It may require greater ingenuity to unduly influence a person of sound mind and body, and more evidence may be required to show that such a person was overcome than in the case of one weak of body and mind. But history and experience teach that minds of strong men and women have been overborne, and they have been by a master mind persuaded to consent to what in their sober and normal moments, and free from undue influence, they would not have done."The Baker litigation arose when an acquaintance of the decedent, Alta Potter, succeeded in insinuating herself into Baker's life, convincing her that she was a psychic who could communicate with Baker's deceased relatives. Not surprisingly, these relatives instructed Baker to turn over money, stocks and a condominium to Potter, and to name her as the primary beneficiary under Baker's will. The Court noted "the record demonstrates that Potter's control over Baker's mind and her influence so pervaded Baker's thought processes that they completely subverted her will to the wishes and domination of Potter, and this imposition continued from the moment Baker was convinced Potter was a true psychic and medium to immediately before her death." Baker, supra, at 482. The transfers to Potter were set aside, and probate was denied as to the provisions of the will that benefited Potter.
The majority of the reported cases have defined undue influence as an activity that, in effect, destroys the testator's free agency and substitutes another person's will for that of the testator. In addition, the activity of the perpetrator must overpower the mind and destroy the volition of the testator. The mere opportunity to influence the testator, even when the beneficiary had an interest or motive to do so, is insufficient. (In California, see Estate of Bryson 191 Cal. 521 (1923); Estate of Fritschi 60 Cal.2d 367 (1963); Estate of Lingenfelter 38 Cal.2d 571 (1952); Estate of Lind, 209 Cal.App.3d 1424 (1989); Baker, supra, at 480; Estate of Auen, 30 Cal.App. 4th 300, 308-311 (1994); Estate of Peters, 9 Cal.App.3d 916, 920 (1970)).
Elements that have proven most persuasive to the judiciary include the following:
| (a) | The provisions of the will are unnatural; |
| (b) | The dispositions in the will appear to be at war with the wishes of the decedent, expressed both before and after the execution of the will; |
| (c) | The relationship between the decedent and the primary beneficiaries provided the beneficiaries an opportunity to control the testamentary act; |
| (d) | The physical and mental condition of the decedent was such to permit a subversion of the decedent's free will; and |
| (e) | The primary beneficiaries under the will were active in procuring the execution of the will. |
Evidence of undue influence may be purely circumstantial. Baker, supra, at 481. Cumulative events that support a finding of undue influence may be sufficient even if a single event taken alone might not be enough. However, the proof must be of circumstances that are inconsistent with voluntary action on the part of the decedent, and there must be activity by the beneficiary in the actual preparation of the will or other transfer document.
An evaluation of undue influence can be further complicated for the defender of the dispositive documents and the attorney involved by the unstated presumption in the law that persons will want to benefit their "natural bounty," a presumption often shared by the trier. In other words, the trier may be swayed by a "sense of equity" or "fairness" to find that, e.g., "all children should be treated equally;" similarly, all non-family members (caretakers, live-in partners, neighbors or friends) may be perceived as suspect if dispositions to them are "disproportionate." Thus, even when the testator makes her intention both cogent and clear, i.e., "I leave my neglectful son John nothing by this will, and I leave my entire estate to my caring, dutiful housekeeper, Mary, " John will most likely take heated exception to the loss of his expectancy, and will undoubtedly be in court in short order. In turn, the trier may well be predisposed in John's favor when he alleges Mary's undue influence.
This occurs despite typical jury instructions which warn that every person of sound mind and not acting under undue influence has the right to dispose of property in any way he or she sees fit and is under no obligation to make a disposition "as will meet with the approval of a judge or jury;" a will cannot be set aside simply because it may appear to the jury "to be unreasonable or unjust." But Estate of Mann, 184 Cal.App.3d 593, 610 (1986), notes that such jury instructions are repeatedly ignored, quoting from In re Wilson, 117 Cal. 262, 270 (1897), "that quite a number of people have come to think that the right to dispose of property by will has little significance, and may be legally disregarded whenever the testator has not disposed of his property in a manner which suits the views of a jury." In the later case of Estate of Fritschi, supra, at 373, the California Supreme Court referred to "a legion of [appellate] decisions which strike down attempts of juries to invalidate wills upon the ground of undue influence in order to indulge their own concepts of how testators should have disposed of their properties." The fact that the right to a jury trial is not available today in most will contests ameliorates the situation somewhat, but potential problems remain in court trials and probate proceedings. In an area such as undue influence where there is no bright line test for determination, nonevidentiary factors that may powerfully influence a trier of fact are difficult to discern.
Although the will contestant has the burden of proof of undue influence, this presumption shifts to the beneficiary if: (1) there was a confidential relationship with the decedent, (2) the beneficiary actively participated in procuring execution of the dispositive document, and (3) the beneficiary unduly profited from the document. Moreover, if the beneficiary had a fiduciary or "special confidential" relationship with the decedent, the presumption of undue influence arises if the beneficiary derives "any" profit or advantage. Because the burden on the proponent is made more difficult by shifting the presumption, the clinical criteria for assessing an allegation of undue influence become even more critical.
In most cases, an allegation of undue influence arises after the death of an individual when the terms of that person's estate plan are known, i.e., a will is admitted to probate or distributions are anticipated from a revocable trust after the death of the settlor. The issue may also arise during the estate planning process if a family member or other intended beneficiary, who may receive a disproportionate share of the estate, asks advice as to how to protect against a later charge of undue influence by disappointed beneficiaries. Both attorneys and physicians are typically called upon, either directly or indirectly, to determine if the testator or settlor of a trust, or a now decedent, acted not out of free will but because of undue influence. Finally, the request may arise in the context of confirming the competency of the individual at the time of making the estate planning decisions.
The majority of attorneys, even those with considerable practical experience, are often reluctant and relatively untrained to make judgments as to the mental competency of a client about to undertake a crucial legal action. The issue does not usually arise in the "easy" case, i.e., where the competence level of the client is so obviously deficient even laypersons would without hesitation declare the person to be "out of it." The dilemma is magnified in the case of a charge of undue influence in which the attorney may be unaware of, or unable to gather sufficient information to know, the facts and circumstances motivating a client to make a testamentary decision.
Illustrative Case:
Jack O'Dell, a 78-year-old alcoholic with early Alzheimer's disease and mild congestive heart failure met an attractive 22-year-old woman, fortuitously named Bonnie Highprice, at the local convenience store when he stopped to pick up his daily pint of Seagrams. In less than two weeks, Ms. Highprice had moved into Mr. O'Dell's two-bedroom house, and directly into Mr. O'Dell's bedroom. By the end of the month, Ms. Highprice was the recipient of the deed to Mr. O'Dell's home, his '91 Buick, and his monthly social security checks. A one page notarized contract indicated that transfer of Mr. O'Dell's modest wealth was made in exchange for Ms. Highprice providing him "lifetime care and solicitude."
When Mr. O'Dell's children got wind of this arrangement, they sued to have the contract nullified, alleging Mr. O'Dell's mental incompetence and Ms. Highprice's undue influence. Their lawyer then consulted me and asked that I perform a psychiatric examination of Mr. O'Dell.
Mr. O'Dell gave a passably comprehensive history. A twice divorced, former assembly line worker with a high school education, he was in reasonably good physical health until developing shortness of breath about a year ago. Also notable was a fifty year two pack a day smoking history, and the daily consumption of a pint of liquor for a comparable period. (One attempt at abstinence some years previous had produced intolerable symptoms of withdrawal and was promptly abandoned.) Prior to meeting Ms. Highprice, Mr. O'Dell had not had sexual relations for some two decades. He now claimed to be sexually active with Ms. Highprice, however, though the nature and frequency of this activity he was never able to make clear. In any event, he would alternately express to me satisfaction with his new arrangement with Ms. Highprice, and resentment over the fact that "it ain't my house or car any more. My children say I turned it all over to her."
On mental status assessment of cognitive functions, Mr. O'Dell proved to be unfailingly alert, with a clear sensorium. He was oriented to time, place and person. There were no illusions or hallucinations. His narrative was logical and coherent, and his ideas held together in a rational way. Memory, however, most particularly immediate and proximate, were markedly deficient. For example, he could not recall what he had for dinner during the previous night (though he "thinks" Ms. Highprice did the cooking), nor the name of the president preceding Bill Clinton. He neither knew the amount of his monthly social security checks nor the mechanism by which Ms. Highprice had achieved unfettered access to them. Subtraction by sevens was beyond him, and he could recall only one out of three random words given him just five minutes before.
He reported recent independent living with no difficulty managing his (simple) financial affairs. These were now all in the hands of Ms. Highprice, however, who was "doing alright by me, I guess." He reported that she took all his phone calls, opened and answered his mail, and drove him to his appointments when she deemed them necessary. She kept house, cooked, and did the shopping (which included the purchase of his whiskey and cigarettes). Mr. O'Dell vaguely recalled visiting a notary with her several months back and signing the disputed contract.
There were no abnormal preoccupations, nor were there stigmata of psychosis such as paranoia or "insane delusions.". He knew the identity of his heirs and the extent of his "bounty." He related well, making good eye contact. There was no undue anxiety, hostility or depression manifest. Suicidal ideation was absent. Behavior was entirely appropriate throughout the examination.
I concluded and so testified that a combination of Mr. O'Dell's declining executive functions, his rapid, near-total dependency upon Ms. Highprice, and the latter's singular pursuit of her own agenda provided sufficient clinical grounds to abrogate the O'Dell-Highprice contract. On cross-examination, I acknowledged that were Mr. O'Dell to live a long time, and Ms. Highprice were to stick around, it might be a fair enough arrangement for him (or a good one for Ms. Highprice were Mr. O'Dell to die soon), but that Mr. O'Dell, being obliged to contemplate this issue while the focus of Ms. Highprice's persuasive force field, was hardly equal to the task; his will seemed almost entirely subordinate to that of Ms. Highprice. Furthermore, it appeared that his genitalia were the primary organ consulted on this question, and their functioning was as problematic as that of his cerebrum.
The jury deliberated briefly and then elected to abrogate the contract. (I should note that Ms. Highprice had already left the O'Dell residence shortly before trial.)
In short, by examining the interaction between two (or more) people with a clinical eye, one may isolate and articulate for jurors those psychological elements which give impermissible advantage to one of the parties. Particular attention should be given to the relative characterologic power and vigor of the two parties, the several elements most commonly utilized to convert benign influence into an undue, pernicious process, and the degree to which the party acted upon is even aware that persuasion is being applied.³
³ Fraud and undue influence are independent grounds for avoidance of a contract, but may also be used together with mental illness or defect as a composite ground. That is, though a mental disorder may not in itself be so severe as to establish incompetency, where the evidence also shows a certain amount of undue influence, the court may allow these elements to justify avoidance.
Mental fragility may make a person more susceptible to fraud or undue influence. Similarly, mistake and misunderstanding are also more likely to occur in a mentally ill or defective person than in others, and so may provide a composite ground for avoidance. "Evidence of all of the foregoing is relevant in determining, whether or not the transaction conforms to the normal pattern of similar transactions" (Weihofen, Henry, Mental Incompetency To Contract or Convey, So. Ca. Law Review, 39-211, 1966.)
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For the complete text from which the preceding was excerpted, contact West Group Publications and order Martin Blinder's Textbook, "Psychiatry in the Everyday Practice of Law" (1-800-328-4880).
Dr. Blinder may be contacted directly at his San Anselmo, California, office: 415-453-8920. (In Hawaii, 808-524-3665.)