It is becoming increasingly urgent for our legal system to provide adequate remedies for undue influence and elder abuse. Historically, courts have found influence or abuse improper enough to invalidate a transaction (like a gift) or a document (like an alleged amendment to a trust) only where the settlor/donor is shown to be vulnerable to influence. Most Courts and lawyers still limit their understanding of such “vulnerability” to situations where the victim is weak-willed and the influencer is overpowering. We typically assume that if the alleged victim was “strong-willed,” there can be no undue influence. (See, e.g., Estate of Anderson (1921) 185 Cal. 700, 707.)
However, recent insights from the fields of neuroscience and behavioral economics support what savvy salespeople and “compliance professionals” have known since the days of P.T. Barnum and Dale Carnegie: even “strong-willed” people can be manipulated. Robert Cialdini, in his popular studies of persuasion, identifies six basic tactics used by skilled influencers to get even strong-willed people to do things:
- reciprocation (creating a debt the victim feels compelled to repay);
- commitment and consistency (getting the victim to “take a stand” and stick with it);
- social proof (modeling the desired choice or behavior);
- liking (making oneself attractive to the victim);
- authority (convincing the victim you know best); and
- scarcity (presenting the choice as a fleeting opportunity).
The purpose of our laws on undue influence and financial elder abuse is to protect people from being manipulated into making decisions contrary to their own judgment. We need to understand that anyone, including very strong-willed people, can be vulnerable to this kind of predatory behavior.
For a deeper discussion on the current law and what recent research has to teach us about “vulnerability,” see this article co-authored by Evan D. Winet, attorney at Johnston, Kinney & Zulaica LLP, in the Spring, 2018 issue of the ACTEC Journal: 2018 ACTEC Journal, Undue Influence article.