Capacity and undue influence

November 17, 2000, Seattle, WA.
  • 1.28 MB
  • English

Washington Law School Foundation, Continuing Legal Education , [Seattle, Wash.]
Capacity and disability -- Washington (State), Undue influence -- Washington (S
ContributionsTreadwell, James., Blair, Watson B., Washington Law School Foundation. Continuing Legal Education.
The Physical Object
Pagination1 v. (various pagings) ;
ID Numbers
Open LibraryOL16333441M

The book clarifies the distinction between claims of lack of capacity and undue influence. When lack of capacity is proven to the court, the document is void back to the moment of execution. A document created under undue influence may be set aside by Capacity and undue influence book Court at a later date, but was valid at the time it was created – meaning that the person.

Capacity and Undue Influence: Assessing, Challenging, and Defending Explains the issues involved in assessing capacity and undue influence in the office or in litigation. Covers. This book is designed to provide mental health practitioners with a practical guide to assessing testamentary capacity and undue influence in the elderly.

It contains an overview of the legal issues underlying such assessments; a guide to legal terms used in this area of probate law; information on how to perform these assessments ethically and 5/5(1).

The capacity to make a will, the capacity to make beneficiary designations, the capacity to make gifts and the capacity to settle trusts are examined in this book. Undue influence is looked at both under the equitable doctrine and under the common law. Read more.

A supplemental 4-credit, Capacity and undue influence book question continuing education program is available for this book. To order the complete program (this book and CE test module, or test module alone if you already have access to this book), go to: Practical Assessment of Testamentary Capacity and Undue Influence in the Elderly - CE Program (4 Credits).

Undue Influence and Vulnerable Adults also helps readers understand the options and potential consequences of proactive waivers and permissions for release of information as well as the potential importance of being able to initiate contact with family or other trusted advisors when concerns about capacity and/or undue influence subsequently.

Book review: Capacity and Undue Influence Book review: Capacity and Undue Influence. Sunday, 01 March By John Poyser, reviewed by Margaret O’Sullivan TEP. This prodigious work considers key issues in the complex and rapidly evolving law of capacity and undue influence, which is destined to become only more nuanced and complicated as.

Undue Influence: The Epic Battle for the Johnson & Johnson Fortune Paperback – September 1, by David Margolick (Author) › Visit Amazon's David Margolick Page. Find all the books, read about the author, and more. See search results for this author.

Are you an author. Learn about Author Central Reviews: The identification of subtle impairment of these functions in the context of a complex environment could easily produce a vulnerability to undue influence and affect testamentary capacity.

Assessors of testamentary capacity and undue influence and the courts must be able to interpret the significance of these commonly used tests.

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The law presumes that the actions of the bad actor establishes the existence of undue influence. We like to say that undue influence is capacity light. Meaning that you don’t have to prove an actual lack of capacity to succeed with undue influence, you only have to show that there was enough of a mental capacity issue to make the elder.

By Howard S. Simmons TEP Book review: Capacity and Undue Influence, by John ES Poyser (Toronto, Carswell, ), xxiv and pp., $ This review was originally published in Estates Trusts & Pensions Journal Volume 34 Number 3 May An older woman lives in Ottawa; her husband of 61 years died the previous year.

The capacity to make a will, the capacity to make beneficiary designations, the capacity to make gifts, and the capacity to settle trusts are examined in this book.

Undue influence is looked at both under the equitable doctrine and under the common law. The laws of Canada, excluding Quebec, are covered in this treatise.

New in this edition. The majority of undue influence cases involve senior citizens and there is often an issue of testamentary capacity. I stress however that undue influence can occur in non senior situations such as for example, a young person joining a cult.

How legal capacity and undue influence is determined under California law; Who is the client. When to engage a neuropsychologist, When and how to use a certificate of independent review; The significance of shifting the burden of proof in undue influence cases, specifically “active participation in procuring the instrument”.

Described as required reading for any attorney, this new book helps readers to identify factors that may indicate an individual is vulnerable to undue influence and to understand options that might be available to the client while they are still competent and able to address issues of capacity and vulnerability that may arise in the future.

1. A series of UK cases over the past decade have explored that difficult space between the right of the court to intervene where decisions are made by those who lack mental capacity and those who have capacity but are in a situation where they are vulnerable to being influenced in their decision making by the influence of others – including relatives and friends – who may be influencing.

• Where the capacity of a client is at issue, chances are greater that undue influence, or other issues relating to capacity, may be inter-related. For instance, there is often interplay between capacity, undue influence and suspicious circumstances Evidence of undue influence may even rebut the.

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.

Undue influence, or the persuasion of influence due to an interpersonal relationship, is seen often in businesses, regardless of sector or size. The Practical Assessment of Testamentary Capacity and Undue Influence in the Elderly Thomas G.

Gutheil Journal of the American Academy of Psychiatry and the. 2. Sum up the testamentary capacity benchmarks. List at least two questions to ask to ensure testamentary capacity. Sum up the burden of proof in will contests.

Explain how the will can be used as evidence of lost capacity.

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Provide the definition of undue influence. Explain how to use fact witnesses in capacity disputes. As the population ages and more elders live alone, attorneys deal increasingly with the problems of capacity and undue influence. Clients in the areas of trusts and estates, probate, family law, and general civil litigation may present serious legal issues arising from a lack of decision-making capacity or the undue influence of a third party.

"Undue influence" is the most common ground for will contests and are often accompanied by a capacity challenge. That is, someone in possession of full mental capacity is not likely to be swayed by undue influence, manipulation, or coercion.

In litigation most jurisdictions place the burden of proving undue influence on the party challenging. It seems that every will contest includes a claim of undue influence along with the more standard claims of lack of testamentary capacity and lack of due execution.

But, undue influence is. Complicating the picture is traditional thinking that mental capacity and undue influence are intrinsically linked. In other words, undue influence occurs only if there are deficits in mental functioning. As Nerenberg () (Appendix C) notes in her literature review for this project, a California court found otherwise in the.

Estate of Olson. Undue influence is a psychological process that may be used against an older person as a means of committing two forms of elder abuse: financial exploitation or sexual abuse. Undue influence is also a legal.

concept. Case law and statutes recognize that undue influence can undermine an individual’s self-determination. Mental capacity and undue influence often overlap. Lack of mental capacity may be found where a person may be affected by congenital deficiencies in intelligence, mental deterioration that accompanies old age, the effects of brain damage caused by accident or organic disease, and mental illnesses evidenced by such symptoms as depression.

(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 and benefited from the will through improper means.

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The court quoted from ’s book Capacity and Undue influence at pages – “The principle is that whenever a person is instrumental in the generation of a will under which he or she benefits, or the circumstances are otherwise of a character that causes the court to be concerned over whether the will maker truly understands.

Ultimately, the trial court declared that the purported will was invalid due to William’s lack of capacity and Eve’s undue influence over him, and it ordered that William’s estate be distributed as if he had died intestate.

The court also ordered Eve to transfer title of bank accounts, the house and the car — all of which she otherwise. “All people risk being subject to ‘undue influence’ yet this may be exacerbated for those who rely on the supports of others to make decisions. Undue influence is characterized where the quality of the interaction between the support person and the person being supported includes signs of fear, aggression, threat, deception or manipulation.Undue Influence Undue influence is an equitable principle used to set aside certain transactions.

While originally applied to wills, it has been applied to other transactions and planning documents such as powers of attorney. It is always important to consider whether undue influence is it at work, especially when the older adult may have diminished.

In Texas, the law regarding undue influence applies to wills, trusts, and other instruments, including account designations. In Fieldinga Texas appeals court affirmed a trial court’s summary judgment in favor of a caretaker and against heirs alleging undue influence regarding financial account designations.

No evidence of exerted undue influence ended this case before trial .