Determination of mental competence is based upon clear and crisp legal and clinical criteria and can usually be made with relative ease. Undue influence, however, is a far more amorphous legal concept, and one which lacks precise clinical parallels. In legal terms it is generally understood to embrace: Any improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered and the person is either induced to forebear or do an act which he or she would not do if left to act freely; influence which deprives the person of free agency or destroys freedom of will and renders it more the will of another; mis-use of a position of confidence or the exploitation of a person’s weakness, infirmity, or distress, so as to change improperly that person’s actions or decisions.
Unlike incompetence, which reflects a single protagonist’s impaired mental/physical condition, undue influence refers to an adverse dynamic process between two or more people. As such, an interpersonal view is likely to be more helpful than the Diagnostic and Statistical Manual of Psychiatric Disorders published by the American Psychiatric Association, which addresses static psychiatric conditions entirely dependent of their context.
Before attempting to put into practical, operational terms what it is that the author believes creates undue influence, a few words about the “baseline state” — the normal condition wherein undue influence would be absent.
In all probability, there can be no undue influence, irrespective of the antagonist’s motives, if the protagonist:
1. Knows his or her own mind, e.g., “Hands off. What’s mine is mine! I earned it, I spend it.”
2. Can readily distinguish his or her interests from those of the antagonist, e.g., most young woman would be suspicious of the motives of the date who solicitously suggests that if she consents to sexual union, she’ll be “a lot more lovable.”
3. Can distinguish a neutral, disinterested assertion, (“pass the salt”), from an active, persuasive one, (“How do you expect the eggs I’m cooking for you to taste any good if you won’t pass me the salt!”)
That is, convincing the enfeebled or cognitively disabled protagonist to take some action he or she might otherwise not undertake is not necessarily undue influence — it may simply be influence. It only becomes undue when the antagonist persuades in the service of the antagonist’s own interests, incapacity or infirmity, lacks one or more of the three elements presented in the preceding.
In addition, undue influence, almost by definition, is invisible to the protagonist. We tend to resist persuasion, however well intended, when we see it coming. Conversely, people are far more likely to abandon their own views for those of another when unaware that someone is endeavoring to convince them to do so — a maxim the advertising industry has long recognized. Indeed, had Marc Anthony come to address the Roman senate and admitted up front that he was there to laud Julius Caesar and to castigate Brutus and the gang for assassinating him, the crowd would have sent him packing, or worse. Instead, he began his speech by assuring the senators that he had come “not to praise Caesar but to bury him,” and then said a few things about Brutus which, on their face, appeared complimentary. The senators, thus disarmed, were much more vulnerable when Marc Anthony turned to his intended task of bringing them around.
Certain circumstances reliably increase the force and effectiveness of undue influence:
1. The protagonist has developed a debilitating physical or mental disorder.
2. The protagonist is essentially isolated, save for the presence of the antagonist; or such contact with others that may exist is filtered through the antagonist (as is typical of cults).
3. The protagonist has become dependent upon the antagonist for the meeting of his or her basic needs, for emotional support, commerce with the outside world, access to other elements of his or her support system, etc.
4. The antagonist, by dint of character traits, intelligence, strength, social class, education, experience, etc., possesses a uniquely powerful persona relative to that of the protagonist.
5. The protagonist is utilizing medications or other chemicals that can alter a person’s state of consciousness and diminish his or her will.
It should be emphasized that undue influence does not require a finding of mental incapacity, although most contestants will agree both lack of mental capacity and undue influence as grounds to overturn testamentary or lifetime transfers of assets. That is, while a person with mental deficiencies is arguably more susceptible to manipulation, undue influence does not necessarily depend, from either a legal or medical perspective, on any finding of diminished mental capacity. Nevertheless, a person who falls victim to undue influence is often one whose psychological or social profile reveals a passive or vulnerable personality.