Undoing Undue Influence: How the Doctrine Can Avoid Judicial Subjectivity by Omitting the Vulnerability Element.

Authored by: Robin Boyle-Laisure

Abstract:

The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced.  I argue that the courts’ inquiry into the mind of the influence to determine whether this person was vulnerable is not a useful construct as an element of the doctrine.  This Article addresses three contexts in which assessing one’s vulnerability is problematic: (1) in the contract formation process occurring in the general population (meaning not within a high-control group), such as the example in the signing of an arbitration agreement in Martinez-Gonzalez v. Elkhorn Packing Co.; (2) in disputes resolving whether testamentary bequests went to the rightful beneficiaries of wills; and (3) in contract formation processes occurring in high-control groups, such as in the case of D’Onofrio v. Mother of God with Eternal Life.  Because the traditional doctrine of undue influence involves the courts’ assessments of the claimant’s state of mind, this Article uses the term “vulnerability” to refer to the analysis courts use to determine whether the claimant was free from coercive control.

As this Article shows, inviting courts to assess vulnerability is problematic for several reasons.  In the first instance above, demonstrated by the dissenting opinion in the Martinez-Gonzalez case, courts have ignored key findings and misapplied the law, which I refer to below as “judicial subjectivity.”  In the second instance, involving will disputes, demonstrated by a research study, courts have imposed their morality on which beneficiaries are more deserving.  In the third instance, one of the high-control groups, mentally healthy (not vulnerable) individuals, such as Dr. Steven Hassan, can be ensnared by predatory groups, and determining when they exercised free will would be an impossible task.  For those raised in such groups, like a Second Generation cult member such as the one I interviewed, determining whether they exercised independent decision-making when in the group or shortly upon leaving would be impossible.  Judges are not trained as psychologists, nor are they in a position to know whether in the past, the testator who is no longer alive or the person who was in a cult, was of sound mind. 

The facts and the court’s reasoning of the Martinez-Gonzalez case in California bring to light the fundamental flaws of the traditional doctrine of undue influence. This Article shows how the application of undue influence has stumbled not only in contract formation cases in a setting outside of a high-control group, but also in two other types of cases: deciding the wishes of testators in will disputes and in deciding whether individuals exercised independent thought, free of the influence of the cult leader, in high-control groups.