Undue Influence in Contract and Probate Law
Abraham Nievod, Ph.D., J.D.
San Francisco, California
This article outlines the history
of undue influence and the law, the definitions of undue influence, judicial
considerations in deciding undue influence cases, and the types of cases in
which document examiners may be called upon to testify. Undue influence cases
most commonly appear in contract or probate law. Undue influence cases may occur
in relationships based upon trust and confidence, family members or friends, or
within the context of totalistic groups.
Undue influence is considered in two areas of the law
having to do with written documents, that is, first, contracts, and second,
wills and/or trusts. In each of these areas, the courts, in deciding actual
cases, and the legislature, in enacting specific statutes, have been concerned
with the state of mind of the individual assenting to a contract or executing a
will. "Freedom of will," at the time the contract or will is executed, is
essential to the validity of both -- so that each can truly be the instrument
of the maker's will.
If a contract is obtained by undue influence, the document
is invalid; as contract law theory sees it, no contract has been formed. Within
the conceptual framework of contract law, no contract can be formed unless there
has been a "meeting of the minds" of independent, bargaining individuals. If a
contract is obtained through the use of undue influence, there has never been an
actual meeting of the minds of two bargaining parties.
If a will is obtained by undue influence, the courts
require a showing that the will of the testator, the maker of the will, is
subjugated to the will of another. Such subjugation is shown through acts or
conduct that overcome the free agency of the testator. It must be proven that
the testator disposed of his or her property in a manner contrary to and
different from the disposition that would have occurred had there been no such
I. Undue Influence and Contract Law
The concept of undue influence developed in the English
courts as a means of policing unfair agreements induced by improper means of
persuasion.1 By contrast, the common law doctrines of duress were
conceived as corollaries of the law of crime and tort.2 The English
equity courts sought to protect individuals, affected with a "weakness" that
fell short of total incapacity, against improper persuasion by others in
positions of authority, control, trust, familial relation, or the like, who had
the means and opportunity to exercise improper persuasion.3 The
equity courts did not have to resort to legal doctrines that were based on
violations of the law of tort or crime; rather, the unfair gain of economic
advantage over someone mentally or physically disadvan�taged was condemned by
the prevailing standards of ethics as defined and applied by the equity courts.4
Dawson, in tracing the history of the legal concept of
undue influence, notes a significant advance in the doctrine as occurring in the
19th century.5 Undue influence cases were seen within a larger
context, where the wrong perpetrated was the interference with another's will,
which ideally should be free. The test for undue influence became the presence
or absence of free agency, that is, whether the individual will had been
overpowered. The net result was that the inequality that the courts should guard
against was pressure that compelled the person to act against his or her own
The courts came then to regulate the pressures that can be
exerted on the physically, mentally, or emotionally disadvantaged, as Dawson
indicates in summation of the development of this doctrine, with the use of
donative gifts as a specific example.
A closer reading of undue influence cases reveals the
opera�tion of some objective tests, side by side with the analysis of individual
motives that is chiefly accented in judicial opinions. Transactions must be
judged not only in terms of motive but in terms of their effects. The aim is
by no means to eliminate but to safeguard the powers of donation of the aged,
the timid, the physically or mentally weak. Therefore, the question, difficult
as it is to answer, must be whether existing opportu�nities for the exercise of
pressure have been used to divert the gift from its normal and natural course,
in view of the donor's total situation--economic, psychological, and emotional
A striking example of a case that involves both a contract
and a will comes from the early English cases. In a case decided in 1617, by
Chancellor Francis Bacon, a woman of the quaint name of Mrs. Death was found to
have used undue influence to obtain a deed to land and a will leaving her
personal property of considerable value, from a Mr. Lydiatt. As Chancellor Bacon
[Lydiatt was] an old man about
the age of eighty years and being weak of body and understanding and having a
great estate of goods and lands . . . was drawn by the practices and indirect
means of . . . [Mrs. Death] to give his house here in London and to come to
sojourn with her at her house in the country . . . [although she was married to
Mr. Death], and that she having him there did so work upon his simplicity and
weakness and by her dalliance and pretence of love unto him and of intention
after the death of her then husband to marry him, and by sundry adulterous
courses with him and by sorcery and by drawing of his affections from . . . his
kindred, telling him sometimes that they would poison him and sometimes that
they would rob him.7
After she had obtained control of his estate and property,
Mrs. Death neglected such attendance of him as she had used before and used him
in a most cruel manner reviling him and causing him to be whipped and suffered
him to lie loathsomely and uncleanly in bed until three o'clock in the afternoon
without anybody to help him so as all the skin of his loins went off, he being
not able to help himself by reason he was troubled with a dead palsy and other
diseases, and when at any time she did come to help him up she would pinch him
and revile him and by such cruel and terrible courses kept him so in awe as that
he durst not revoke what before he had done, neither would she suffer his nieces
to come unto him lest he should make his moan unto them, for she said if they
came there she would scald them out of her house.8
Here, we see many of the elements of undue influence:
weakness, opportunity, means of persuasion, and unnatural disposition of
property and estate. Mrs. Death so worked "upon [the] simplicity and weakness"
of the 80-year-old Lydiatt, "by her dalliance and pretence of love . . . and by
sundry adulterous courses with him and by sorcery," that he executed a will and
a deed in Mrs. Death's favor.
A. Legal Reasoning
To adequately understand what the concept of undue
influence has come to mean in a contemporary legal setting, one must first look
to the statutory definition of the term. Second, one looks to actual cases where
undue influence is central to the decision to determine in what context the
issue has arisen and how judges interpreted the term in light of the facts of a
specific case. Third, one reasons by analogy from the facts and judicial
interpretation of a precedent-setting case to the facts of any case‑at‑hand. The
history of legal decisions on the issue of undue influence becomes a series of
legal precedents that are applied by analogy to any new or novel set of facts.
B. Statutory Definition of Undue Influence
California defines undue influence by statute in California
Civil Code Section 1575:
- In the use, by one in whom a confidence is reposed by
another, or who holds a real or apparent authority over him, of such
confidence or authority for the purpose of obtaining an unfair advantage over
- In taking an unfair advantage of another's weakness of
- In taking a grossly oppressive and unfair advantage of
another's necessities or distress.9
C. Undue Influence in Relationships Based on Trust and Confidence
Corresponding to the first subsection of Civil Code 1575,
the courts traditionally require two elements to be proven in a case of undue
influence involving a contract: (1) a special relationship between the parties
based on confidence and trust; and (2) improper influence or persuasion of the
weaker party by the stronger.
1. The concept of special relationship in 1575(1) of the Civil Code.
The term "special relationship" is a complex concept in the
law. The basic idea is a relationship between parties based on trust and
confidence where the weaker party is justified in assuming that the stronger
will not act in a manner inconsistent with his welfare.10 Where this
relationship of trust and confidence has been formally recognized, either by
statute or case law, the stronger party is often referred to as a fiduciary.
Examples of such statutorily recognized fiduciaries are trustees, guardians,
executors, administrators, and attorneys.
Because professionals, such as trustees or attorneys, are
recognized as having fiduciary responsibilities, the courts will scrutinize
their actions intensely. In general, the fiduciary has the obligation or burden
of proving that he or she has adequately discharged the duties attendant on this
Other common, nonstatutory examples of special
relationships include parent and child, husband and wife, member of the clergy
and confess�ing communicant, and physician and patient.
2. Undue influence in a relationship based on trust and confidence.
Once the special relationship based on trust and confidence
is estab�lished, the second step in proving undue influence is to prove that the
assent of the weaker party was obtained by means of unfair persuasion or undue
influence. Cases differ as to the nature or degree of the unfair persuasion
necessary to be called undue influence. Fundamentally, the courts will seek to
determine whether the result was an exercise of the individual's free will or
produced by means that substituted the will of a stronger party for the will and
judgment of a weaker.
One factor the courts will consider is an obvious imbalance
of power or inequitable unfairness in the results of the bargain to the weaker
party. Other factors considered in various cases are (1) lack of independent
advice, (2) special susceptibility of the weaker party to the importuning of the
stronger, and (3) lack of time to reflect and consider the consequences of all
A common example of a fiduciary relationship is that
between attorney and client. If an individual enters into a contract with his
attorney (except for the original contract to retain the attorney's services),
where the attorney profits from or gains an advantage over his client, that
contract is taken by the courts to be presumptively invalid. In order for the
attorney to gain the benefit of the contract and for the courts to find the
contract valid, the attorney must prove that the client was fully informed of
all necessary facts and that the individual had been advised and given the
opportunity to consult with another independent attorney. Moreover, the attorney
must prove that the contract was fair in all regards and that the client
received an adequate return in exchange for what the client gave over to the
The example of a contract between a client and an attorney
may be seen as a model of the issues of undue influence where a fiduciary is
involved. If a contract is made between an individual and his or her fiduciary,
such as an executor or trustee, the contract may be rescinded unless (a) the
contract is fair in all aspects; (b) the beneficiary was of full capacity at the
time the contract was entered into; (c) prior to entering into a contract, the
beneficiary had full knowledge of all the facts of the contract and of his or
her rights under the contract; (d) he or she had time to reflect on the
contract; and (e) he or she had the opportunity, or was advised, to consult an
outside fiduciary or expert.
D. Undue Influence in Cases Involving Family Members or Friends
Often cases arise that involve family and friends who
become parties to a contract. In general, family relationships, such as between
husband and wife or parent and child, are confidential relationships. These
relationships, like fiduciary relationships, have at their crux a history of
"informal" trust and confidential dealings. In cases that arise where a family
member gains a profit or distinct advantage through dealing with a weaker party,
the courts have looked to see if the weaker party is very old, mentally
incapacitated, suffering from debilitating sickness, or otherwise physically or
psychologically impaired. Such physical or psychological impairment combined
with a lack of independent advice and a contract giving an obvious advantage to
a family member would force the stronger party to prove the contract's fairness.
E. Undue Influence in Relationships Not Based on Trust and Confidence
The second and third sections of Civil Code 1575
contemplate situations where undue influence occurs outside the ambit of a
fiduciary or confidential relationship. These cases arise much less frequently
in the law than cases involving fiduciaries or family members.
One reason for the lack of frequency is that the courts
have been worried that individuals who simply made a "bad" bargain might later
claim they were induced into the bad contract through the artful deception and
undue influence of the other party. Courts have long recognized that good
salesmanship and "puffery" extolling the virtues of an otherwise mediocre object
are the basis of many a contract. If these virtues prove to be actual
misrepresentations that induced the unwary party to enter into the contract,
he or she can seek to rescind the contract under the doctrine of fraud or
On the other hand, good salesmanship is limited by the
legal concepts of duress and undue influence. Duress is coercive behavior,
either physical compulsion/confinement or a threat of the same, which induces
the victim's agreement to enter into a contract. Under the theory of contract
law, where there has been duress, there has been no actual assent to the
contract, since the victim has been forced to become a "mere mechanical
instrument" of the stronger party.11
Where the relationship is less formalized, that is, without
a confidential or fiduciary relationship, the courts will look to a combination
of factors to determine whether an individual has taken advantage of the
weakness of another through the use of his or her own disproportionate strength.
The courts have found that "disproportionate strength" may be based upon
knowledge, experience, training, or relationship. Therefore, undue influence
also includes situations in which the weaker individual comes under the
domination of the stronger, when such "strength" is based on knowledge,
training, or relationship, and "weakness" is a product of weakness of mind or
necessities of life and/or distress.
In the most important of such cases, Odorizzi v.
Bloomfield School District,12 the plaintiff was an elementary
school teacher who had been arrested on criminal charges of homosexuality. In
his complaint, he alleged that one day after his arrest, booking, interrogation
by the police, and release on bail, and after he had gone 40 hours without
sleep, the superintendent of the school district and the principal of his school
came to his apartment to ask for his resignation. The school officials said that
they were acting in Odorizzi's best interests in seeking his resignation, after
which they would not publicize the arrest and thereby interfere with his chances
to secure future employment. They also said that if he did not resign
immediately, they would dismiss him and publicize the incident. The plaintiff
signed a written resignation at that time. Later criminal charges were
dismissed. He was later denied reinstatement and reemployment. Odorizzi brought
his case against the school district to rescind his resignation.
The appellate court reversed a trial court decision and
said that the situation rightfully fell under the doctrine of undue influence:
taking unfair advantage of another's weakness of mind or distress. The court
held that improper persuasion may occur when the person being influenced suffers
from great weakness or when the person exercising the influence has excessive
Further, the court listed a series of criteria that
indicate whether this type of undue influence has taken place:
(1) discussion of the transaction
at an unusual or inappropriate time, (2) consummation of the transaction in an
unusual place, (3) insistent demand that the business be finished at once, (4)
extreme emphasis on untoward consequence of delay, (5) the use of multiple
persuaders by the dominant side against a single servient party, (6) absence of
third‑party advisers to the servient party, (7) statements that there is no time
to consult financial advisers or attorneys.13
Subsequent cases hold that undue influence occurs when a
number of these elements, not necessarily all, are simultaneously present. The
simultaneous operation of such factors ultimately indicated that the contract
was achieved by means that impaired the free will and independent judgment of
The representatives of the school board undertook to
achieve their objective by overpersuasion and imposition to secure plaintiff's
signature but not his consent to his resignation through a high pressure carrot
and stick technique--under which they assured plaintiff they were trying to
assist him, he should rely on their advice, there wasn't time to consult an
attorney, if he didn't resign at once the school district would suspend and
dismiss him from his position and publicize the proceedings, but if he did
resign the incident wouldn't jeopardize his chances of securing a teaching post
F. Undue Influence as Programmatic Strategy of Totalistic Groups Intended to
Induce the Formation of a Contract
Recent litigation has seen the rise of causes of action
based on the premise that totalistic groups, both of a religious and
nonreligious character, have developed and employed programmatically applied
techniques to control and manipulate behavior in a weaker or subservi�ent party
in order to induce the weaker party to enter into a contract or execute a will
in favor of the group or the charismatic leader of the group. Briefly, such
groups used "coordinated programs of coercion and behavior control" for example,
the organization and application of intense guilt, shame, and/or anxiety
manipulation, combined with the production of strong emotional arousal in
settings designed to produce behavior that furthered the ends of the group or
the leader.15 Conformity with group expectations was the goal of the
social and psychological pressures applied by the groups. Such pressures could
only be reduced by the weaker party's acceptance of the group's belief system
and participation in behavior orchestrated by the group.
Research indicates that such groups operate by deliberately
exploiting psychological vulnerabilities of the weaker party.16 The
strategy developed by these groups employs use of a designed program of
psychological and social techniques that attack and destabilize the weaker
party's "central elements of the experience of self." Central elements of the
self have been defined as including "self‑evaluation of the adequacy or
correctness of a person's intimate life and confidence in perception of reality
(e.g., relations with family, personal aspirations, sexual experience, traumatic
life events, religious beliefs, estimates of the motivations of others, etc.)."17
Ofshe and Singer propose that reality awareness, emotional control, and basic
consciousness are at the core of the sense of self.18
Destabilization of the sense of self is coerced through
techniques that force a reinterpretation of individuals' life history, a radical
alteration of their worldview, an acceptance of a new version of reality and
causality, and/or dependency on the organization. Singer and Ofshe suggest that
attacking the stability and quality of evaluations of self‑concepts is the
principal effective technique used in the conduct of a coercive thought reform
and behavior control program.19 Among the techniques used to
accomplish such ends are group pressure, modeling, accusations, confessions on a
social level, emotional flooding, sleep deprivation, stripping away of various
psychological defense mecha�nisms, induction of cognitive confusion, and
hypnosis to intensify recalled or imagined experience. The programmatic nature
of these techniques in such groups has been termed a "behavior change
technology," which can render a person a highly deployable agent of the
In Molko v. Holy Spirit Association,21
the California Supreme Court held that a former member of a religious group
could seek restitution of a monetary gift to that group based on a theory of
undue influence. Briefly stated, Molko alleged that defendant Holy Spirit
Association [hereinafter "Church"] deceived him into unknowingly submitting to
coercive persuasion, thereby obtaining undue influence over him which the Church
later used to extract the monetary gift. The Court held that Molko could bring a
claim against the Church as to whether the Church established and used its
dominant psychological position and its confidential relationship with Molko
"for the purpose of obtaining unfair advantage of him with regard to the gift."2
It is of importance that the Court cited three sources for
its view of undue influence as applicable to these groups. The first is
California Civil Code 1575 (discussed above). The implication would be that such
groups could be held to the standard of undue influence as stated in that code
section. The second is an appellate court decision23 that undue
influence is "that kind of influence or supremacy of one mind over another
by which that other is prevented from acting according to his own wish or
judgment" [emphasis added by California Supreme Court]. The third source cited
was a legal reference text24 that stated that undue influence occurs
when "one party uses [its] dominant psychological position in an unfair manner
to induce the subservient party to consent to an agreement to which he would not
otherwise have consented."
The research into such groups would tend to indicate that
contracts induced by such means could meet the seven criteria established for
finding undue influence in nonfiduciary relationships by the court in
The Odorizzi criteria must be analyzed within the
entire context of relations between the individual and the organization. The
discussions regarding the contribution of assets occur after an organization has
promoted dependence of the individual through incremental structural and
material life changes. After an initial "recruitment phase" designed to
establish affective bonds between the recruiting agents and the subservient
individual, influence tactics are employed to promote dependence on the
organization. Direct social pressure is used to induce an incremental,
step‑by‑step sequence of decisions leading to the formation of dependent power
relations. Acceptance of the authority and the rules of the organization leads
to structural and material changes in the individual's life which increasingly
promote dependence. In part, structural and material changes over an individual
are introduced into a person's life by the individual's intimates who are also
subject to the authority of the organization. Such intimates are in fact agents
of the organization who ease the person along the road to dependence.
Increasingly, the organization controls the person's income, employ�ment,
capital, and social life. For example, persons may be induced to move into a
communally organized residence, accept employment in an organization's business,
leave school, or contribute whatever assets they control to the organization.
Therefore, the Odorizzi criteria would be important
in characterizing the methods used by totalistic groups to secure donations and
bequests by means of undue influence. It is within the context of the authority
wielded by the group--that is, structural and material control--that pressure
and insistence on contributing assets to the organization occur. The alternative
to making contributions is often the threat of expulsion. In such circumstances,
a person threatened with expulsion is simulta�neously being cut off from major
social supports upon which the stability of identity and emotional well‑being
depend. At the same time, expulsion may also mean the loss of income,
employment, capital, and social life.
II. Undue Influence and Probate Law
A. Undue Influence Defined in Probate Law
The concept of undue influence also plays an important role
in probate law. Although the use of the concept is similar to that found in
contract law, the proof of undue influence in contesting the viability of a will
is more exacting and detailed. Courts are on the whole reluctant to disturb the
disposition of a will after the testator has died. At least three reasons have
been advanced supporting the sanctity of wills. First, the courts recognize that
an individual may dispose of his or her property as he or she sees fit, either
unjustly and unfairly or with justice or with fairness. Second, the central
factual witness and oftentimes only witness to the testator's intent is not
available for trial -- he or she is dead. Third, juries, if given the
opportunity, would remake many wills according to their own sense of a just
distribution, which may not reflect the testator's actual wishes.
Specifically, the courts are concerned primarily with the
mental state of the testator at the precise moment the will was being signed.
Undue influence must have been exerted at that moment. The effect of the undue
influence must have been to overpower the mind and the will of the testator at
the time the will was made. The undue influence must have been such that it in
fact produced the disposition of the will, thereby exclusively expressing the
intent of the one exerting the influence. It must also be established that the
testator would not have made such a distribution of assets but for the undue
B. Circumstantial Evidence of Undue Influence: A Combination of Factors Is
Necessary to Sustain a Finding of Undue Influence
The act of undue influence is rarely witnessed; therefore,
the common situation is one where undue influence is proven by circumstantial
evidence. Courts require substantial evidence to upset a testator's written
will. Various lists of factors have been drawn in numerous cases. A consensus of
cases would list the following factors: (1) unnatural disposition, (2)
opportunity to exert the undue influence, (3) susceptibili�ty, and (4) activity
of beneficiaries in procuring the will.26
First, unnatural disposition is taken to mean that
"strangers," that is, unrelated parties, receive the benefits of the will to the
exclusion of blood relations, or that one child receives the bulk of the bequest
while others of equally close relation receive little or nothing.
Second, opportunity means that relations existed
between the chief beneficiaries and the decedent that afforded the beneficiaries
an opportunity to control the testamentary act.
Third, susceptibility means that the decedent's
mental and/or physical condition was such that it left him or her susceptible to
the undue influence and domination of others.
Fourth, activity means that the chief beneficiaries
were active in procuring the will, isolating the testator from his or her
family, or preventing the testator from obtaining independent legal advice.
The combination of these four factors present at the same
time has been found sufficient.27 None of these factors alone is
sufficient to support a finding of undue influence. For example, mere
opportunity to influence even when there is a motive is not sufficient for an
inference that such influence was in fact exerted. Proving the testator was
particularly susceptible is almost always necessary. In cases where undue
influence has been found, the testator invariably has suffered from a weakened
physical condition or psychological vulnerability. This weakness or
vulnerability appears to be the foundation of further proof that there was
improper persuasion or activity that subverted the will of the testator.
A common pattern in cases when undue influence is found is
(a) a physically weak or psychologically vulnerable testator together with (b)
active participation in the procuring of a will by the beneficiary and (c)
unnatural profits by the beneficiary.
C. Relationships of Trust and Confidence That Involve Undue Influence
The courts will rigorously scrutinize a bequest to a
beneficiary who also has a simultaneous fiduciary relationship with the testator
based on a trust and confidence. This situation is somewhat analogous to that in
the discussion of contract law above. The fiduciary relationships contemplat�ed
by probate law entail the same statutorily defined fiduciaries, attorneys,
trustees, and so forth, and nonstatutory relationships based on trust and
confidence, family members and friends. Among those professions found to be
confidential are a business adviser,28 a secre�tary/companion,29
and religious counselors.30 Where the beneficiary is in a
confidential relationship with the testator, and is both actively
involved in procuring the will and unduly profits from the will, that is,
there is an unnatural disposition of assets, a presumption of undue influence
arises. This presumption then forces the beneficiary to prove that the will was
the product of the testator's desires and intentions.
III. Document Examiners and Undue Influence
The document examiner, who is interested in whether a
document under consideration is a product of undue influence, may be consulted
as to whether there exist any indicia of undue influence in the signature or
writings contained in the document. Based on the cases reviewed for this paper,
judicial rulings have not permitted document experts to testify directly that
the contract or will was a product of undue influence. In general, the courts
have taken the view that factual questions about the physical condition or
mental state of an individual are within the domain of medical, psychiatric, or
psychological experts and not document examiners.
Where testimony by a document examiner is permitted to go
beyond the narrow domain of the authenticity of a document, such testimony has
been on the issue of whether the maker was competent to make a contract or will.
In general, even in the few cases31 discovered
where such testimony has been permitted, the testimony is given limited
evidentiary value. No case was found where the testimony of a document expert
standing alone (that in his or her opinion the maker of the document suffered
from a condition that rendered the maker incompetent) was sufficient proof of
incompetence. At most, such testimony is a single fact among others on which a
trier of fact may base a judgment as to competency. Hypotheti�cally, if the
testimony of a document expert is permitted on the incompetency of a signing
individual, as for example that the individual suffered from a degenerative
neurological condition as evidenced by degenerative changes in his or her
signature over time, that testimony might be used to indicate that such an
individual would be particularly susceptible to undue influence. No cases
permitting such testimony have been found.
Competency to make a will, or testamentary capacity, is
focused on the testator's condition at the time of making the will. The question
is whether the individual had sufficient mental capacity to be able (1) to
understand the nature of the act he or she is doing, (2) to understand and
recollect the nature and extent of his or her property, and (3) to remember and
understand his or her relations to living descendants, spouse, and parents whose
interests will be affected by the will.
In contract law a person is generally assumed to be
competent to enter into a contract and bind himself to the terms of the
contract. Today, only two defects are generally accepted as impairing the power
to contract: (1) immaturity, by chronological age; and (2) psychological status.
As to psychological status, no universal standard of mental capacity to enter
into contract has been set. Older cases were concerned with "lunacy" and
"insanity." Mental infirmity, as it was often called, was recognized as being
the end result of various processes, including retardation, mental illness,
brain damage, dementia, and the use of alcohol and drugs.
The traditional tests for capacity to enter into a contract
were cognitive: the capacity to understand the nature and consequences of the
transac�tion, that is, the ability to know what one was doing and appreciate the
effects of such an act.32 In addition to a cognitive test of
capacity, some authorities and some states have adopted a volitional test: where
the individual understands the nature and consequences of his or her actions,
but lacks effective volitional control over such actions, as with an individual
suffering from manic‑depressive illness.33
In Estate of Garvey34 and Estate of
Darilek,35 the courts were presented with situations where the
contestants to the respective wills introduced testimony by physicians, who were
also qualified as handwriting experts, that the testator was incompetent based
on reviews of portions of the medical records written by the patient and a
comparison of signatures. In Garvey, the physician performed an autopsy
and compared documents; in Darilek, a psychiatrist reviewed hospital
records and compared exemplars with records made by the decedent in the
hospital. In each case the trial court and the court of appeals rejected that
testimony as insufficient to establish incompetency.
1. Farnsworth, Contracts, 4.20, p. 444.
2. Dawson, John P., "Economic Duress--An Essay in
Perspective," Michigan Law Review 253, at 263ff [hereinafter "Dawson"].
3. Joy v. Bannister (Chan. 1617), in Bacon's reports 33,
34 (Ritchie ed. 1932); Clarkson v. Hanway, 2P. Wms. 203 (1723) (a convey�ance by
a "weak" seventy-two-year-old was set aside because the individual was "easily
to be imposed," with inadequacy of consider�ation being an additional ground);
Blake v. Johnson, Prec. in Chan. 142 (1700); and Lucas v. Adams, 2 Mod. Cas. in
Law and Equity 118 (1725).
4. Dawson, 45 Michigan Law Review 253, at 262.
5. Id., at 263.
6. Id., at 264.
7. Joy v. Bannister (Chan. 1617), in Bacon's Reports 33,
34 (Ritchie ed. 1932).
8. Id., at 34-35.
9. Civil Code 1575 (Deering).
10. Restatement Second of Contracts 177 ("a party . . . who
by virtue of the relation between them is justified in assuming that [the other]
person will not act in a manner inconsistent with his welfare").
11. Farnsworth, supra. 4.16.
12. Odorizzi v. Bloomfield School District (1966) 246
Cal.App.2d 123, 54 Cal.Rptr. 533.
13. Id., 246 Cal.App.2d at 133, 54 Cal.Rptr. at 541.
14. Id., 246 Cal.App.2d at 135, 54 Cal.Rptr. at 543.
15. M. T. Singer & R. Ofshe, "Thought Reform Programs and
the Production of Psychiatric Casualties," 20 Psychiatric Annals No. 4, at
188-193 (April 1990) [hereinafter cited as Singer & Ofshe "Thought Reform
16. R. Ofshe & M. T. Singer, "Attacks on Peripheral versus
Central Elements of Self and the Impact of Thought Reforming Tech�niques," 3
Cultic Studies Journal No. 1, at 3-24 (1986) [hereinafter cited as Ofshe &
17. Id., at p. 4.
19. Singer & Ofshe, "Thought Reform Programs," at 189.
20. Ofshe & Singer, "Attacks," at 5. See R. Ofshe "The
social development of the Synanon cult: the managerial strategy of
organizational transformation," 41 Sociological Analysis 109.
21. Molko v. Holy Spirit Association For the Unification of
World Christianity, et al., 46 Cal.3d 1092, 252 Cal Rptr. 122, 762 P.2d 46.
en banc, cert. denied, 190 S.Ct. 2110 (1989).
22. Id., at 1125, 46 Cal.Rptr. at 141.
23. Bolander v. Thompson (1943) 57 Cal.App.2d 444, 448, 134
24. Calamari & Petrillo, The Law of Contracts (2d ed. 1977)
25. See text at footnote 13.
26. See Estate of Graves (1927) 202 Cal. 258, 262, 259 P.
935; Estate of Yale (1931) 214 Cal. 115, 122, 4 P.2d 153; Burgess v. Bohle
(1944) 63 Cal.App.2d 165.
28. Estate of Graves (1927) 202 Cal. 258, 259 P. 935.
29. Estate of Rugani (1952) 102 Cal.App.2d 624, 239 P.2d
30. Estate of Bourquin (1858) 161 Cal.App.2d 289, 326 P.2d
31. Estate of Little (1920) 46 Cal.App. 226; Estate of
Garvey (1940) 38 Cal.App.2d 456; Estate of Darilek (1957) 151 Cal.App.2d 322;
McLeod v. Bullard (1881) 84 N.C. 515; Entwistle v. Meikle (1899) 180 Ill. 9, 54
N.E. 217; Raymond v. Flint (1917) 225 Mass. 521, 114 N.E. 811; Adams v. Adams
(1923) 253 S.W. 605; Gibbons v. Redmond (1935) 142 Kan. 417, 49 P.2d 1035.
32. Farnsworth, supra, 4.6.
33. See Ortelere v. Teachers Retirement Board (1969) N.Y.2d
196, 250 N.E.2d 460.
34. Estate of Garvey (1940) 38 Cal.App.2d 456, at 458.
35. Estate of Darilek (1957) 151 Cal.App.2d 322, at 326.
This article was originally printed in the Journal of
Questioned Document Examination, Vol. 1, No. 1, 1992, the official
publication of the Independent Association of Questioned Document Examiners,
Inc. It is reprinted with permission.
Abraham Nievod, Ph.D., J.D., is an attorney and
forensic psychologist in San Francisco.
Reprinted from: Cultic Studies Journal Volume 10, Number