According to legal scholars, the creation of
undue-influence law was a direct response to the
growing concern that “the church was taking
advantage of...the [deathbed] fears of the faithful
for its own aggrandizement” (Sherman, 2008, p.
581). As noted in an ancient English case,
“[T]here are no instances where men are so
easily imposed upon as at the time of their
dying, under pretense of charity....” (Attorney-
General v. Bains, 1708, p. 272) Thus, the law of
undue influence was developed as a means of
protecting private wealth from overzealous and
predatory religious clerics. As the centuries
passed, undue-influence cases expanded beyond
religion to include situations in which financial
interactions raised the possibility that the
transfer of assets at the time of death might not
have been the product of a free and voluntary
choice.
These testamentary will and financial cases
involved assets, not ideas, and not identity.
However, today we see the subtle and seductive
techniques of influence and control deployed to
change ideas, to implant beliefs, and to alter the
identity of the person influenced, all to serve the
best interests of a cunning and manipulative
influencer.
When we move from the physical realm
involving the exchange of money to the mental
realm of the creation, alteration, and insertion of
belief systems, and even identity, other problems
give judges serious concerns. Naturally, these
more modern cases are even less familiar to
judges, and thereby create other obstacles for
testifying experts.
The Clarity Problem
Two prominent legal scholars, Jesse Dukeminier
and Stanley M. Johanson (1995), have correctly
pointed out that “Undue influence is one of the
most bothersome concepts in all of law. It
cannot be precisely defined” (p. 160).
This definitional issue is neither unusual nor
fatal. Many concepts in law, such as due process
of law, can be understood only after
considerable interpretation based on analysis of
varying fact patterns brought before the courts.
Indeed, the concept of reasonable doubt, which
is an important part of every criminal trial, is no
clearer, and many states forbid judges to even
attempt to define it for juries because the
definitions themselves are too confusing. As the
Missouri Supreme Court said in State v.
Robinson (1893), “It is difficult to explain
simple terms like ‘reasonable doubt’ so as to
make them plainer.... Every attempt to explain
them renders an explanation of the explanation
necessary” (p. 1069).
The California Supreme Court (Rice v. Clark,
2002) has defined undue influence as “pressure
brought to bear directly on the testamentary act,
sufficient to overcome the testator’s free will,
amounting in effect to coercion destroying the
testator’s free agency” (p. 528). This statement
provides little guidance for when the undue-
influence doctrine will be applied. But one fact
gives us a clue.
If the influencer is determined and clever
enough, and the techniques utilized are
sophisticated and powerful enough, experts
believe that few people will be able to resist
becoming victims of undue influence (Quinn,
2010, p. 93). A California appellate court 80
years earlier, in a will-contest case, is in
agreement (In re Olson’s Estate, 1912):
Soundness of mind and body does not
imply immunity from undue influence.
It may require greater ingenuity to
unduly influence a person of sound
mind and body, and more evidence may
be required to show that such a person
was overcome than in the case of one
weak of body and mind. But history and
experience teach that minds of strong
men and women have often been
overborne, and they have been by a
master mind persuaded to consent to
what in their sober and normal
moments, and free from undue
influence, they would not have done.
(p. 386)
I take these independent comments to mean that
everyone, almost, under certain circumstances,
is potentially vulnerable and that suggests to me
that the undue-influence doctrine should not be
limited to cases involving wills, nor to cases
involving other financial misdeeds. In other
words, the shift by influencers from targeting
International Journal of Cultic Studies ■ Vol. 6, 2015 73
undue-influence law was a direct response to the
growing concern that “the church was taking
advantage of...the [deathbed] fears of the faithful
for its own aggrandizement” (Sherman, 2008, p.
581). As noted in an ancient English case,
“[T]here are no instances where men are so
easily imposed upon as at the time of their
dying, under pretense of charity....” (Attorney-
General v. Bains, 1708, p. 272) Thus, the law of
undue influence was developed as a means of
protecting private wealth from overzealous and
predatory religious clerics. As the centuries
passed, undue-influence cases expanded beyond
religion to include situations in which financial
interactions raised the possibility that the
transfer of assets at the time of death might not
have been the product of a free and voluntary
choice.
These testamentary will and financial cases
involved assets, not ideas, and not identity.
However, today we see the subtle and seductive
techniques of influence and control deployed to
change ideas, to implant beliefs, and to alter the
identity of the person influenced, all to serve the
best interests of a cunning and manipulative
influencer.
When we move from the physical realm
involving the exchange of money to the mental
realm of the creation, alteration, and insertion of
belief systems, and even identity, other problems
give judges serious concerns. Naturally, these
more modern cases are even less familiar to
judges, and thereby create other obstacles for
testifying experts.
The Clarity Problem
Two prominent legal scholars, Jesse Dukeminier
and Stanley M. Johanson (1995), have correctly
pointed out that “Undue influence is one of the
most bothersome concepts in all of law. It
cannot be precisely defined” (p. 160).
This definitional issue is neither unusual nor
fatal. Many concepts in law, such as due process
of law, can be understood only after
considerable interpretation based on analysis of
varying fact patterns brought before the courts.
Indeed, the concept of reasonable doubt, which
is an important part of every criminal trial, is no
clearer, and many states forbid judges to even
attempt to define it for juries because the
definitions themselves are too confusing. As the
Missouri Supreme Court said in State v.
Robinson (1893), “It is difficult to explain
simple terms like ‘reasonable doubt’ so as to
make them plainer.... Every attempt to explain
them renders an explanation of the explanation
necessary” (p. 1069).
The California Supreme Court (Rice v. Clark,
2002) has defined undue influence as “pressure
brought to bear directly on the testamentary act,
sufficient to overcome the testator’s free will,
amounting in effect to coercion destroying the
testator’s free agency” (p. 528). This statement
provides little guidance for when the undue-
influence doctrine will be applied. But one fact
gives us a clue.
If the influencer is determined and clever
enough, and the techniques utilized are
sophisticated and powerful enough, experts
believe that few people will be able to resist
becoming victims of undue influence (Quinn,
2010, p. 93). A California appellate court 80
years earlier, in a will-contest case, is in
agreement (In re Olson’s Estate, 1912):
Soundness of mind and body does not
imply immunity from undue influence.
It may require greater ingenuity to
unduly influence a person of sound
mind and body, and more evidence may
be required to show that such a person
was overcome than in the case of one
weak of body and mind. But history and
experience teach that minds of strong
men and women have often been
overborne, and they have been by a
master mind persuaded to consent to
what in their sober and normal
moments, and free from undue
influence, they would not have done.
(p. 386)
I take these independent comments to mean that
everyone, almost, under certain circumstances,
is potentially vulnerable and that suggests to me
that the undue-influence doctrine should not be
limited to cases involving wills, nor to cases
involving other financial misdeeds. In other
words, the shift by influencers from targeting
International Journal of Cultic Studies ■ Vol. 6, 2015 73
