Assembly Bill 140 would modernize the definition of undue influence for elder financial abuse and related probate matters, a definition that has not been revised since 1872. As enacted in 1872, Civil Code § 1575 defined “undue influence” as using the confidence of or real or apparent authority over another, taking an unfair advantage over another person’s weakness of mind, or taking a grossly oppressive and unfair advantage of another person’s necessities or distress.
The new definition that AB 140 would create defines undue influence as excessive persuasion that causes an elder to act or refrain from acting and that results in inequity. Inequity considerations may include, but are not limited to, the economic consequences to the alleged victim, any divergence from the alleged 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, and the reasonableness of the change in light of the length and nature of the relationship.
Cases brought pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), referred to “undue influence” as defined under Civil Code § 1572 of 1872. A/M Dickinson argued that the existing definition of undue influence that has been utilized since 1872 focuses primarily on civil contract disputes. As such, it did not fully provide an adequate definition for probate and elder abuse cases under the Act.
Therefore, the intent of this statute is to modernize the definition of undue influence so that it is consistent with contemporary views of vulnerability, mental health, and fairness, which would bring greater clarity to the determination of when excessive persuasion had become exploitative.