Solo and Small Firm

The Practitioner Fall, 2019, Volume 25, Issue 4

Understanding Client Capacity and Undue Influence

By Tara R. Burd

Tara Burd is Tara Burd is Counsel at Klinedinst San Diego after an 8 year career as the principal and founder of the T. Burd Law Group, APC. Ms. Burd concentrates her practice on probate, trust and business litigation, including probate administration and estate planning. She is admitted to practice in the State of California, California’s Federal Courts and the United States Court of Appeals for the 9th Circuit. Ms. Burd earned her undergraduate degree from San Diego State University and her juris doctor from California Western School of Law graduating cum laude, on CWSLs accelerated, two-year program. Currently, she is on the Executive Committee of the Real Property Law Section of the California Lawyer’s Association, and an active member of the CLA’s Marketing and Communications Committee.

By understanding potential challenges based on a client’s lack of capacity, fraud, or undue influence, legal practitioners can better protect their clients from abuse and a competent client’s wishes from becoming the subject of future litigation.

America has a long history of valuing an individual’s freedom: the freedom of speech, freedom of expression, freedom of religion, freedom to vote, and freedom to contract. However, every day, people make mistakes by spending outside their budget, investing poorly, choosing the wrong friends, and eating the wrong foods. Despite these poor decisions, and absent the commission of a crime, most Americans wake up the next morning with their freedoms intact. Nonetheless, the aforementioned freedom for the elderly, whose decision-making is often under constant scrutiny by family, friends, and sometimes ne’er-do-well opportunists is more challenging. When a 50-year-old unfriends a toxic relative, it is a sign of maturity, but when a 70-year-old disinherits a toxic relative, it is a sign of incapacity. Practitioners should understand what signs indicate possible incapacity or undue influence, to better protect clients on both sides of the line.

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