Under California law, individuals have the right to leave their assets to whomever they choose, outside of community property rules which dictate the minimum assets a surviving spouse should receive from an estate. Other than that, an individual may decide in his dying days to disinherit all of his children and leave his estate to his favorite sandwich artist at the local deli if he so chooses, and the law will allow that. But such changes to a will must be taken voluntarily by a testator (the person creating a will), in accord with formality requirements for a will such as having the proper number of witnesses, and not be the result of undue influence by another party. If a person uses undue influence to get an elder to change his or her will, then the will can be invalidated, but the elder and/or his family can act now to bring a financial elder abuse claim against a wrongdoer who seeks to financially exploit elders.
Defining Undue Influence in California
Of course, anytime a testator changes a will to benefit a different beneficiary, it could be said that the new beneficiary influenced the testator. If a neighbor comes over to an elderly person’s house for 10 years straight to befriend that person and help him or her out, that is certainly an influence, and it is perfectly acceptable for the elderly person to take that influence under consideration in changing her will in favor of the neighbor.
Undue influence, on the other hand, is where a would-be beneficiary exercises an improper type of influence to get an elderly person to change a will. California law defines undue influence as including:
- Using real or apparent authority over another person to get an unfair advantage over him
- Taking an unfair advantage of another’s weakness of mind
- Taking a grossly oppressive and unfair advantage of another’s necessities or distress
Examples of Undue Influence
With those definitions of undue influence in mind, consider the following hypothetical examples of what a California court might determine to be use of undue influence and thus grounds for a financial elder abuse lawsuit:
- A nursing home employee telling a resident he should change his will in order to continue receiving care
- A “friend” of an elderly person suffering from dementia telling her that her family members have all turned against her in an attempt to get her to change her will
- An in-home caregiver who has changed the password on a homeowner’s bank accounts persuading a homeowner to change his will in exchange for the password
These are just a few examples that might apply, and you should speak with an experienced elder abuse attorney to determine whether you have grounds for an elder abuse lawsuit.
Contact the Elder Abuse Attorneys at Berglund & Johnson Today
If you suspect that you or an elderly family member has been subject to financial elder abuse, include the use of undue influence to change a will, the elder abuse attorneys at Berglund & Johnson are here to help. We are committed to serving the legal needs of you and your family in an honorable, ethical, and compassionate manner. Contact Berglund & Johnson today at 1-800-4IF-HURT to schedule a brief, no-hassle consultation to discuss your situation and see how we might be of service to you and your family.