Undue Influence


Whether an estate or trust is upheld, or not, may depend upon proof of “undue influence.”


When a sick, dying or elderly person, or a person dependent on others, makes material changes in an estate plan or gives property away, someone benefits. And someone loses what he or she likely would have received. Even when changes are documented by experienced lawyers, all too often the question is asked: did the change result from any “undue influence?” “’Undue influence,’ obviously, is not something that can be seen, heard, smelt or felt; its presence can only be established by proof of circumstances from which it may be deduced.” Estate of Ferris (1960), 185 Cal.App.2d 731, 734.

The influence can be demanding pressure or more subtle pressure. The California Supreme Court has further defined it as follows: “Undue influence is 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.” Rice v. Clark (2002), 28 Cal.4th 89, 96. “Before a testamentary document will be overthrown because of the exercise of undue influence, the proven circumstances must be inconsistent with voluntary action on the part of the testator.” Estate of Lombardi (1954), 128 Cal.App. 2d 606, 613, quoting from Estate of Llewellyn (1948), 83 Cal.App. 2d 534, 566 (Emphasis added).

To evaluate the evidence relating to undue influence, the first consideration typically is whether or not a presumption of undue influence can be shown. While the person challenging the testamentary instrument ordinarily has the burden of proving undue influence, “under certain narrow circumstances, a presumption of undue influence may arise, shifting to the proponent of the disposition the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence.” Conservatorship of Davidson (2003), 113 Cal.App.4th 1035, 1059. So under certain circumstances, the burden of proof shifts from the challenger to the beneficiary of the trust or estate. In dealing with sometimes elusive and slippery question of what was intended, who has the burden of proof can often dictate the outcome.

A presumption of undue influence “arises upon the challenger’s showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” Rice v. Clark, supra, at 97 (Emphasis added). The first step is sometimes the easiest to determine – whether there exists a “confidential relationship.” “Confidential and fiduciary relations are, in law, synonymous, and may be said to exist whenever trust and confidence is reposed by one person in the integrity and fidelity of another.” Estate of Cover (1922), 188 Cal. 133, 143, 204 P. 583; Sime v. Malouf, supra, 95 Cal.App. 2d at 98-99 (‘One who voluntarily assumes a position of trust and confidence is a fiduciary, and he remains a fiduciary as long as trust and confidence are reposed in him. . . .’) Not surprisingly, the existence of such a relationship founded upon agreement (the “repose” and ‘acceptance’ of a confidence) is a question of fact. Barbara A. v. John G., supra, 145 Cal.App. 3d at 383. GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000), 83 Cal.App.4th 409, 417.

When the person who benefits from the change also is close and active in the planning, he or she may be called upon to bear the burden of proving facts to defend the change, because once the presumption of undue influence arises, the proponent of the will [or trust] must rebut the presumption by a preponderance of the evidence. Estate of Sarabia (1990), 221 Cal.App. 3d 599, 605; Estate of Gelonese (1974), 36 Cal. App. 3d 854, 863. “The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the non-existence of the presumed fact.” Cal. Evid. Code, § 606.

After determining which party must bear the burden of proof, “the proof of undue influence by circumstantial evidence usually requires a showing of a number of factors which, in combination, justify the inference, but which taken individually and alone are not sufficient.” Estate of Ventura (1963), 217 Cal.App. 2d 50, 59. “That the alleged wrongdoer had power or ability to control the testamentary act may be established by a variety of circumstances, such as . . . dependency of the decedent upon the beneficiary for care and attention, or domination on the part of the beneficiary and subserviency on the part of the deceased.” Estate of Washington (1953), 116 Cal.App. 2d 139, 145-146.

The overriding question typically is whether the trust, the will, or the transfer of funds or property, reflects the desires and/or wishes of the testator:

“Factors, other than personal gain … are: ‘(1) The provisions of the will were unnatural . . . . (2) the dispositions of the will were at variance with the intentions of the decedent, expressed both before and after its execution; (3) the relations existing between the chief beneficiaries and the decedent afforded to the former an opportunity to control the testamentary act; (4) the decedent’s mental and physical condition was such as to permit a subversion of his freedom of will; . . .’ A further factor that is considered material is that the person charged with undue influence was in fact active in procuring the execution of the instrument in question.” Estate of Ventura, supra, at 59-60.

Proof of facts, to prove undue influence, or the lack of it, most often means building the most persuasive case pieced from circumstantial evidence, medical records, notes, email and witness’ recollection. And proving your case by circumstantial evidence is what the experts at the Boesch Law Group can do.

The Boesch Law Group has defended and prosecuted claims of undue influence involving some of the most complex relationships and sizeable estates in the State of California. Call us for a consultation if you or a loved one is affected.

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