8/24/2023 0 Comments Duress in real estate![]() What is duress in wills and trusts?ĭuress refers to a situation in which a person is threatened, physically forced, or violently induced to make a decision or commit an action. Take note though that evidence of an inequitable result, without more, is not sufficient to prove undue influence. The inequity of the resultĮvidence of the equity, or inequity, of the result may include, but is not limited to, the economic consequences to the victim or the victim’s heirs, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship with the party who is benefiting from the change. think someone frugal suddenly acting like a spendthrift use of haste or secrecy in effecting those changes, effecting changes at inappropriate time and places, and claims of expertise in effecting change. think someone acting contrary to their “normal” self – and how they manage their property – e.g. Unexpected changesĮvidence of abnormal changes in the victim’s behavior, including how they manage and care for themselves – e.g. Medical, caregiver, and financial records are often the key to proving these claims. threats of physical, mental or fiscal harm often requires third-person accounts, because the victim is often deceased or incapacitated and the abuser isn’t telling. promising company or even sexual relations but only in a quid pro quo scenario – intimidation or coercion – e.g. Use of affection, intimidation, or coercionĮvidence of control over the victim through the use of affection – e.g. ![]() The influencer’s apparent authorityĮvidence of apparently authority may include but is not limited to, status as a fiduciary, family member, care provider, health care processional, legal professional, spiritual adviser, expert, or other similar “helper.” The actions or tactics used by the influencerĮvidence of actions or tactics used may include, but is not limited to, controlling necessaries of life, medication, the victim’s access to and interactions with others, access to information, access to medical care, or sleep. ![]() While undue influence can be cited in numerous areas of law, including trust and probate litigation, under California Welfare and Institutions Code § 15610.70, undue influence is defined broadly as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” What is an example of undue influence?īecause undue influence can be hard to identify, the American Bar Association suggests that all of the following shall be considered: Vulnerability of the victimĮvidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where the influencer knew of, or should have known of, the victim’s vulnerability. What is undue influence in wills and trusts?
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