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A central issue driving most — if not all — will or trust contests is the question of undue influence. As in, was the will or trust “procured” by undue influence, triggering invalidity under F.S. 732.5165 (for wills) or F.S. 736.0406 (for trusts).

In Florida we don’t have a statutory definition for undue influence, and the case law is so context specific and open to such a broad range of interpretation by whomever your judge (or jury) happens to be; it’s basically a “I know it when I see it” standard.

Which facts matter?

When the law’s that fuzzy, the facts really matter. In most undue influence cases that means you’ll need an expert witness to testify on your behalf. Knowing in advance which facts matter — and which don’t — for that kind of expert testimony is crucial. And if you’ll need this expert to prepare a written report in support of your case, you’re going to want to know in advance what a “good” report should look like (this is also important to know when cross examining the other’s side’s expert witness).

Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists:

One of the best resources I’ve come across for understanding undue influence from a clinician’s point of view and how to apply that analytical framework in the litigation context is a user friendly handbook developed jointly by the ABA’s Commission on Law and Aging and the American Psychological Association entitled Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists.

First, the handbook provides an excellent explanation of the leading clinical models for identifying undue influence (or the lack thereof) and presenting that forensic evidence in court. Here’s a chart from the handbook summarizing the four leading models.

And here’s an excerpt from the handbook providing context for these undue-influence models.

Undue Influence in Relationships Based on Trust and Confidence

Keeping in mind the wide variability across states, courts often require two elements to be proven in a case of undue influence involving a contract: (1) a special relationship between the parties based on confidence and trust; and (2) intentional and improper influence or persuasion of the weaker party by the stronger.

Psychologists performing assessments of undue influence must therefore determine if a confidential relationship exists that would provide the opportunity for undue influence to occur. More descriptively, undue influence occurs when a person uses his or her role and power to exploit the trust, dependency, and fear of another. Perpetrators of undue influence use this power to deceptively gain control over the decision making of the second person (Singer, 1993). Psychologists working with the older adults on cases regarding financial capacity need to be knowledgeable about undue influence and integrate that knowledge into every stage of the assessment process.

Psychological Frameworks for Understanding Undue Influence

Undue influence is an emerging area of study for psychologists and, to date, there is little published research to draw upon. Here we introduce several models, but draw upon common elements in our discussion. We present four models that have been used to understand undue influence in older adults. Margaret Singer, PhD, an early noted expert in this field originally developed her model regarding undue influence out of her work with cult victims. Subsequent clinical models, such as the Brandle/ Heisler/ Steigel Model, Blum’s “IDEAL” model, and Bernatz’s “SCAM” model draw heavily on the work of Singer and her collaborator, Abraham Nievod, PhD, JD.

Second, the handbook then goes through an entire case study demonstrating in granular detail exactly how one of these reports should be written up. That kind of specificity is gold for practitioners. Here’s an excerpt:

Writing About Undue Influence in Your Report

Undue influence evaluations include all of the information that goes into a capacity assessment (purpose of evaluation, history of problem, medical, social, occupational history, neuropsychological testing, discussion of results, and financial capacity findings), as well as a discussion of the factors that have contributed to the older adult’s susceptibility to undue influence. Copious records are gathered in these cases to develop a timeline of events and to factually support the expert’s opinion. These records may include medical, law enforcement, legal and financial, deposition testimony, estate planning documents, interviews with the victim, and collateral informants.