Mental Health DoctorAs a trust litigation attorney in Sacramento, I often make or defend against allegations of undue influence in the context of a trust amendment that favors one beneficiary over another. In this setting, what is the proper role of a mental health expert, such as a forensic psychiatrist, with regard to evaluating undue influence? Last February I wrote on this issue, discussing my recent experience in the probate department of San Joaquin County Superior Court.

An article entitled “Assessing Undue Influence,” in the September 2016 issue of The Journal of the American Academy of Psychiatry and the Law, takes up the subject. Written by two psychiatrists, Daniel A. Plotkin and James E. Spar, and an attorney who litigates trust/estate disputes, Howard L. Horwitz, the article seeks to sharpen the focus for mental health professionals who take the witness stand in undue influence cases in the context of testamentary instruments, such as wills and trusts.

The article provides citable authority for California lawyers who seek to limit the roles of experts in undue influence cases because the authors specifically comment on the four undue influence factors listed in California’s relatively new definition of “undue influence” located at Welfare and Institutions Code section 15610.70.

After discussing the factors in section 15610.70, the authors “recommend a gradient for MHP [i.e., mental health professional] expert input on undue influence: MHPs have the most to say about focus #1 (victim’s vulnerability), with less to say about #2 (the influencer’s apparent authority), and then #3 (the influencer’s actions), and nothing to say about #4 (the equity of the result).”

With regard to vulnerability of the alleged victim, while the statute lists eleven factors, the authors suggest that mental deficits and physical/emotional dependency are the two most important. They assert that cognitive impairment associated with dementia and delirium “may reduce the victim’s ability to act according to long-held values and goals, and to accurately assess the sincerity, honesty, and motivation of individuals in a position to exert influence.” They cite two studies, however, for the proposition that “decision-making capacity . . . can be impaired in older adults with no apparent cognitive impairment.”

As to the second element of the undue influence analysis, the alleged perpetrator’s apparent authority, the statute seems to focus on the status of the perpetrator. An adult child, for example, may have apparent authority over an elder by assisting with transportation and finances. Yet the authors rightly focus on the victim’s subjective perspective as to the influencer. A dementia patient with impaired executive function may be more likely to believe that a caregiver cannot be replaced, thus giving the caregiver power over the victim that is disproportional to the caregiver’s objective status.

The authors argue that experts generally should refrain from commenting on the state of mind or actions of the alleged influencer.

Should an expert opine on the ultimate question of whether there was or was not undue influence with respect to a contested document? The authors answer that question in the negative based on the variety of considerations (some unrelated to the mental processes of the alleged victim) that go into the analysis. In my February blog post, I discussed how one judge so limited the scope of expert testimony through a ruling on a motion in limine that would have the effect of truncating the role of the experts at trial.

The article summarizes the “confusing and inconsistent set of recommendations” for mental health experts in undue influence cases, as presented by various organizations over the last decade, and the authors seem to welcome California’s statutory definition as providing a more defined frame of reference for testifying experts.

In coming years, the California appellate courts will issue published opinions that flesh out the undue influence criteria listed in section 15610.70. For now, the authors of “Assessing Undue Influence” provide quotable illumination on the role of mental health experts in undue influence litigation in California.