Undue Influence Attorney

What is Undue Influence in California?

Undue influence is present when an influencer substitutes their intent for that of a testator causing the testator to make a disposition different from what they would have made without the influence. Undue influence is a grounds for both will and trust contests. A will contest seeks to invalidate a will or a portion thereof. Similarly a trust contest seeks to invalidate a trust or a portion thereof.

How to Establish Undue Influence

In California, Undue Influence can be established in the following ways:

  1. prima facie case
  2. case law presumption
  3. statutory presumption

1) Prima Facie Case of Undue Influence

Undue influence exists when a person uses “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Cal. Prob. Code §86Welf & I C §15610.70(a).

There are 4 elements that must be satisfied for a prima facie case of undue influence:

  1. Vulnerability of testator: the testator has a weakness such that they are able to have their free will overcome. This weakness can include psychological weakness, financial weakness, physical weakness etc. For example, a disability, illness, or emotional distress can count as a vulnerability.
  2. Apparent authority of influencer: the wrongdoer had access to the testator such as holding the position of fiduciary, family member, close friend, etc.
  3. Motive/tactics of the influencer: for example, the influencer can use affection to coerce a testator or may be controlling necessaries of life such as medication, access to others etc.
  4. Equity of result: an unnatural result which appears to be the result of the undue influence. For example, the wrongdoer is taking a devise they normally wouldn’t, or is taking a share that ordinarily would not be expected.

Welf & I C §15610.70(a)(1)-(4)

Burden of Proof on Undue Influence

Generally, the person claiming there was undue influence, the contestant, has the burden of proof.  Cal. Prob. Code §8252(a). However, if a contestant can meet any of the below presumptions of undue influence, the burden is shifted to the non-contesting party to show that the document in question or portion thereof was not procured through wrongdoing.

2) Case Law Presumption of Undue Influence

A contestant can shift the burden to the proponent of the will if the contestant can establish a presumption of undue influence by showing:

  1. The existence of a confidential relationship between the testator or settlor and the person alleged to have exerted undue influence;
  2. The person’s active participation in procuring the instrument; and
  3. the person unduly profited

Estate of Graves (1927) 202 C 258, 262

If the above can be shown, then the proponent of the instrument has the burden of proving that it was not procured by undue influence. Estate of Sarabia (1990) 221 CA3d 599, 605. Shifting the burden of proof is a powerful weapon for the contestant and has the potential to make or break a case.

What is a Confidential Relationship?

A confidential relationship exists when trust and confidence is placed by one person in the integrity of another. Estate of Rugani (1952) 108 CA2d 624, 630. California recognizes all of the common law confidential relationships: 1) attorney-client, 2) doctor-patient, 3) guardian-ward, 4) clergy-penitent, 5) trustee-beneficiary.

What is Active Participation?

Under the statutory definition of undue influence, which supplements the common law, the actions or tactics used by the influencer must be considered to determine whether a result was produced by undue influence. Cal. Prob. Code §86Welf & I C §15610.70(3). Evidence of actions or tactics may include the initiation of changes in personal or property rights, the use of haste or secrecy in effecting those changes at inappropriate times and places, and claims of expertise in effecting changes. Welf & I C §15610.70(3)(C).

What is Undue Profit?

To determine if there was an undue profit, the relationship between the decedent and the beneficiary is evaluated. An undue benefit exists when the alleged influencer is taking a devise and they ordinarily would not be expected to take a devise or they are taking  devise greater than expected.

3) Statutory Presumption of Undue Influence: Probate Code Section 21380

Section 21380 of the California Probate Code creates a presumption of undue influence for provisions in an instrument (trust, or will) making a donative transfer to certain persons. These include gifts made to the person who drafted a donative instrument (such as a will or trust), gifts made to a transcriber of such an instrument who is also in a fiduciary relationship with the grantor, and the care custodian of a dependent adult (if the instrument was made during the time the custodian rendered care services, or within 90 days before or after such services were rendered). Employees, relatives, and cohabitants of these persons are also presumed to exert undue influence if a gift is made.

To overcome this statutory presumption, a beneficiary must prove—by clear and convincing evidence—that the gift was not the product of undue influence. Beneficiaries who are unsuccessful in an attempt to overcome the presumption of undue influence are also responsible for all costs and attorney’s fees related to their case.

Consequences of Finding Undue Influence by Prima Facie Case or by Case Law Presumption

If undue influence is found under a prima facie case or under case law presumption, then only that part of the instrument affected by undue influence is deemed invalid. Cal. Prob. Code §6104.

Consequences of Finding Undue Influence Under the Statutory Presumption

If undue influence is presumed under the statutory presumption, then the transferee (the person set to benefit) is deemed to have predeceased (died before) the transferor without spouse, domestic partner, or issue. This means the gift lapses or fails and the transferee does not take.

Federza Zekiri
Trust, Estate, & Probate Attorney Ferdeza Zekiri

Attorney Scott Talkov
Talkov Law Attorney & President Scott Talkov

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