how many attempts does it usually take to get a lawyer for an undue influence case

Do I need a lawyer for undue influence?

A business lawyer will better be able to identify if you are a victim of undue influence and navigate you through the complex legal process. A qualified attorney could recommend an appropriate course or action to protect your legal interests.

How long does an undue influence lawsuit take?

This is especially true for the lawyer handling such a case on a contingency fee basis. An undue influence trial usually requires many days of examinations for discovery. Such a trial often takes a minimum of two weeks. Disbursements can be substantial including fees for medical expert witnesses and private investigators..

Do undue influence claims ever win at trial?

In fact, very few undue influence claims win at trial because in most cases there is just not enough convincing evidence presented to the court. Remember, the court must receive admissible evidence to overturn a Trust or Will, merely opinion or speculation is not sufficient.

What should I look for in an undue influence case?

7) Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. Usually perpetrators are unsophisticated in their methods. While undue influence is a form of civil fraud, the defendants are usually not particularly intelligent, skilled, or savvy.

What is actual undue influence?

1) Actual: In cases of actual undue influence, the recipient must be shown to have coerced the transferor to make will or inter vivos gift. The conduct must be such that the court finds that the transfer or disposition was not the true will or free intention of the victim.

What is the onus for proving undue influence for inter vivo gifts?

A-The onus for proving undue influence for inter vivos gifts differs depending on the nature of the relationship between the parties. In the absence of a fiduciary or special relationship, the onus rests on the party alleging undue influence to prove it.

Why are allegations dismissed at trial?

A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds the testator had sufficient mental capacity and therefore allows the will to be propounded. The loss of an undue influence case at trial can have devastating effects on both the client and the lawyer.

What is disbursement for medical expert witnesses?

Disbursements can be substantial including fees for medical expert witnesses and private investigators.. Such influence is most often exerted in private aware from other friends, family members of potential beneficiaries. There are rarely eyewitnesses who observe blatant undue influence being exerted.

What should counsel consider before undertaking a contingency fee?

1) Before undertaking such a case, particularly on a contingency fee basis, counsel should consider being retained initially only to gather facts. This will assist both client and counsel in determining whether there is a good likelihood of success.

What is suspicious circumstances?

Suspicious circumstances or are simply circumstances that arouse the suspicion of the court. In the leading case, Barry v. Butlin (1838) 2 Moo. P.C. 480, it was held that the court ought not to pronounce in favor of the will unless the suspicion is removed. That role has been extended to include all cases in which a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator. ( Clark v. Nash (1989) 34 E.T.R. 174 (B.C.C.A.)

Does persuasion amount to undue influence?

Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator.

Who exerts undue influence on estate planning?

For example, undue influence may be exerted by a lawyer, a caretaker, or a relative.

What is the relationship between a will maker and a person who exerted influence?

There was a "confidential relationship" between the will-maker and the person who exerted influence. The will-maker was susceptible to undue influence. (Often, allegations of undue influence go hand in hand with charges that the person lacked the mental capacity to make a valid will.) The influencer took advantage of the will-maker ...

What happens if you don't receive inheritance?

And sometimes they're right. Elderly or ill people are sometimes taken advantage of by those close to them, who manipulate them into cutting out close family members —and leaving assets to the influencer instead. This is called "undue influence," and if it's proven in court, a will can be ruled invalid.

Can a will be invalid if it is proven in court?

This is called "undue influence," and if it's proven in court, a will can be ruled invalid.

Can a relative contest a will?

A relative who suspects undue influence must contest the will in probate court, after the will-maker's death. Laws vary from state to state, but generally, to win a lawsuit charging that a will was written under undue influence, the person bringing the lawsuit must usually prove that:

What are the tools of undue influence?

Affection, intimidation or coercion are additional tools of undue influence. The undue influencer’s actions to have the victim make changes in personal or property rights are often cloaked in secrecy and initiated in haste. Secrecy is occasioned by warnings of dire results to the elder if the secrecy is breached.

What is the burden of proof for elder abuse?

But a plaintiff must first demonstrate: 1) a confidential relationship between the elder and suspected abuser.

What is elder financial abuse?

Elder financial abuse is a serious crime that reverberates throughout our communities, and it’s a growing problem across the state of California. When an elder’s estate or trust is suddenly changed without explanation to produce an unjust outcome, an unscrupulous family member, caretaker, or other individual could be committing elder financial abuse, with the means of coercion known as undue influence. Elder financial abuse reveals itself through specific patterns and behaviors, and we can usually track a wrongdoer’s steps toward gaining control of an estate. They’ll employ all sorts of tricks and techniques to get their way: frequent visits, blandishments, and gifts (emotional manipulation) as well as isolation, outright intimidation, and even physical abuse. Through these methods, undue influencers can maneuver themselves into legal position for inheriting the elder’s funds and property once they’ve passed away.

Can you file an undue influence claim in probate court?

Now undue influence claims that are used to overturn invalid wills and trusts in probate court can also be filed in your local county superior court as a potential case of elder financial abuse. Civil court trials, decided by a jury, allow you to pursue damages and punish a wrongdoer for elder abuse.

Is the division of an estate unfair?

Coercion Needed: The division of an estate may indeed be unfair, but if the elder testator is of sound mind and not coerced, then a judge won’t take much interest in the result. Unfairness is not enough. What’s crucial here is the presence of coercive behavior by the bad actor against the elder.

Do you need to be medicated to be vulnerable to deathbed undue influence?

A person need not be heavily medicated to be vulnerable to deathbed undue influence. The emotional distress, isolation and all attendant emotions and concerns of the dying both open the door to the greatest graces and love available in our lives and also the vulnerability to manipulation by the unscrupulous.

Why do courts grant undue influence?

Courts often grant undue influence as a legal remedy, as the legal system has an interest in seeing a wronged party made whole, and to ensure that vulnerable parties are protected. There are many different examples of the types of relationships where undue influence may occur. However, some of the most common undue influence contract examples ...

When a victim party realizes that the contract may have been entered into through the use of undue influence,

When a victim party, or those close to them, realize that the contract may have been entered into through the use of undue influence, that party may then choose to file a legal claim against the dominant party in court in order to return them to the state they were in before the undue influence was exerted over them.

What is the meaning of "unenforceable" in contract law?

In contract law, when one party of a contract (the “wrongdoer”) exerts power over another party (the “victim”) to the extent that the free will of the other party is called into question, courts may declare the contract to be unenforceable and voidable by the victim party, as those actions would likely meet the undue influence definition.

How many elements are needed to prove undue influence?

In order to prove undue influence the victim party must typically prove different legal elements. Typically, there are four elements which must be proven by the victim party in order to prove that undue influence occurred:

What is undue influence in estate planning?

Undue influence may also occur in estate planning, such as during will drafting.

Why is a contract voidable?

The reason that undue influence makes a contract voidable rather than void, is because there are often cases in which the contract is beneficial to the party that is accusing the other party of taking advantage of them.

What are some examples of undue influence?

However, some of the most common undue influence contract examples where one party may be taken advantage of include: Familial Relationships: One of the most common occurrences of undue influence being exerted over a vulnerable party is when the parties share a familial bond. For example, oftentimes close or distant family members may take ...

How to prove undue influence?

To successfully prove undue influence cases, attorneys cannot just state the various risk factors present and show a suspicious timeline of activity, they need to marry the two into a cohesive argument. This can best be accomplished by explaining the tactics used by the offending party to unduly influence the victim.

Why are undue influence cases dismissed?

Courts are inclined to find that testators had sufficient mental capacity to carry out their dealings and as such, most Undue Influence cases are dismissed due to lack of evidence. Difficult, however, is not impossible and the 2014 clarification of the Undue Influence statute in California has armed petitioners with a greatly improved ability ...

What is the evidence of vulnerability?

Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability. (2) The influencer’s apparent authority.

What is undue influence in California?

Currently, in California, undue influence is defined by “excessive persuasion” that overcomes a person’s free will and results in inequity. In making their determinations, courts consider four key undue influence elements: the vulnerability of the victim, the influencer’s apparent authority, the actions used by the influencer, and the equity of the result. Any single factor is not enough on its own to prove undue influence but a combination of some or all of them may.

What does "undue influence" mean?

Specifically, 15610.70 states: “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

What are the effects of undue influence?

The impact of undue influence often extends beyond the monetary loss. The stress of being manipulated can cause strong negative emotions, such as anger, sadness, and anxiety. It can even take a physical and mental toll on someone who was previously a strong and healthy individual.

What does it mean when an influencer divides the person from their loved ones and closest allies?

Often the influencer divides the person from their loved ones and closest allies in order to more successfully coerce. The elderly and infirm are usually more vulnerable to being unduly influenced, which can include a range of activities that may include these: Changing the power of attorney. Choosing a lawyer.

What happens if the criteria for actual undue influence cannot be proven?

If the criteria for actual undue influence cannot be proven, the victim may be able to establish a presumption of undue influence. This category varies from actual undue influence in that the victim can just prove that a certain set of circumstances exist, from where undue influence will be inferred.

What happens if you are subject to undue influence?

A party who is subject to undue influence will be expected to seek relief within a reasonable period following the end of the undue influence. If this is not done, the right to rescind may be lost.

How does undue influence work?

Undue influence can also work to induce a person to enter a contract with someone other than the purported influencer. For instance, Party A can, through the exercise of undue influence, induce Party B to enter a contract with Party C.

How to rebut a presumption of undue influence?

Once a presumption of undue influence is established by a purported victim, the accused may rebut the presumption of undue influence by proving that the claimant entered the contract freely, out of their own volition.

What happens if a contract is found to have been procured by undue influence?

If a contract is found to have been procured by undue influence, the innocent party will be entitled to the remedy of rescission. Rescission is where a contract is set aside, and the parties are put back into the position in which they were before the contract was made. Rescission is different to termination of a contract.

What are the three types of undue influence?

There are three types of undue influence as recognised in most common law countries: 1. Actual undue influence. 2. Presumed undue influence where the presumption is rebuttable. 3. Presumed undue influence where the presumption is irrebuttable. We will go into more detail below.

What is undue influence in contract law?

Undue influence is an equitable doctrine in contract law that refers to circumstances in which an individual with more power places improper pressure on the weaker party to induce them into entering a contract against their will. If undue influence is found, this will invalidate the contract, which helps protect freedom of contract.

Why do very few undue influence claims win at trial?

In fact, very few undue influence claims win at trial because in most cases there is just not enough convincing evidence presented to the court. Remember, the court must receive admissible evidence to overturn a Trust or Will, merely opinion or speculation is not sufficient. The problem lies with how you view the evidence you have.

What happens if Todd cannot find evidence to prove Maxine’s vulnerability to undue influence?

If Todd cannot find evidence to prove Maxine’s vulnerability to undue influence, and prove the actions and tactics that Pat and Betty undertook to unduly influence Maxine, then Todd will lose.

What is the law on signing documents?

The law presumes that people understand the implications of the documents they are sig ning. The law further presumes that people who sign documents (1) have capacity, and (2) are not operating under undue influence. If you want to overturn a document, then you have the burden of proving these legal presumptions are invalid in your case.

Why do Pat and Betty believe the reduction is justified?

Pat and Betty believe the reduction is justified because of Todd’s abuse of Maxine’s credit cards. In any event, Pat and Betty claim they had no involvement, and did not influence Maxine, in creating her new Will.

What is the burden of proving a legal presumption is invalid?

If you want to overturn a document, then you have the burden of proving these legal presumptions are invalid in your case. That can be an unfortunate burden; especially in cases where you do not have sufficient evidence to invalidate a document.

Who told Todd to move out?

Maxine confronted Todd and told him to move out. Todd moved in with his girlfriend. Maxine told the other two grandchildren of her problems with Todd and they helped her pay the credit card debt and secure her credit cards so Todd could not keep using them. A year passed and Maxine forgave Todd for the spending.

Can you lose an undue influence claim?

The problem lies with how you view the evidence you have. If you view the evidence in a light that is most beneficial to you, then you will likely lose your undue influence claim. If, however, you view the evidence in a light that is most beneficial to your opponent, and you still believe you have a good case, then you have a good chance of winning.