What is Undue Influence?

When someone passes away, we have a sense of whom we expect to inherit the bulk of their property and other assets. When those expectations do not come to pass, the law sometimes intervenes and overturns the expressed desire of the person who passed away, as reflected in their will, codicil, trust, and related documents.

The idea that specific provisions of a will or trust should not be carried out and that some dispositions of property are suspect goes back a long time. For example, ancient Roman law included prohibitions on distributing property to those who were often in the best position to influence the person making the will (also known as the testator).  Specifically, witnesses to the signing of a will were precluded from receiving property or gifts from that will. 

Unsurprisingly, our notion of undue influence comes most directly from English law. An 18th case, Welles v. Middleton, (1784) 1 Cox 112 (U.K.), overturned a gift given by a client to their attorney. But it was not until the 19th century that English courts regularly applied the concept of undue influence, first in the context of transfers between the living and then in wills.  In general, however, circumstantial evidence of undue influence was insufficient; a party seeking to void the terms of the will need to show actual coercion or fraud.

Today, undue influence is the single most common basis on which wills are challenged. Most challenges to wills based on claims of undue influence are therefore brought by sons, daughters, siblings, and other family members of the testator.  A friend or other confidant or potential beneficiary may also be able to bring a challenge based on undue influence.

Challenges to wills and trusts based on undue influence are most commonly brought either by named beneficiaries who argue that, but for the undue influence, they would have received more.  Likewise, those who were omitted from the will or trust may argue that, without undue influence, they would have been included in the testator’s plans. 

Courts have, over time, expanded the definition of what constitutes undue influence and have been more inclined to consider circumstantial evidence.  Specifically, courts have become more open to circumstantial evidence showing that the mind of the testator had been overcome, such that the terms of the will don’t reflect the true intent of the testator. 

Undue Influence in California 

The primary California statute relating to undue influence was enacted in 1872 in section 1575 of the California Civil Code.  It is often cited as articulating the elements of undue influence and is comprised of three elements:

Undue influence consists:

  1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;
  2. In taking unfair advantage of another’s weakness of mind;  and,
  3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.

More recently, the definition of undue influence cited above was included in the statutory definition of financial elder abuse. Specifically, in 2009, Section 15610.30(3) of the California Welfare and Institutions Code was amended to state that financial abuse of an elder takes place when a person or entity does any of the following:

“Takes, secrets, appropriates, obtains, or retaining or assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Probate Code section 812, or by undue influence as defined  in Civil Code Section 1575, or both.”

Four Elements of Modern Undue Influence Claims

Rachel Wlden-Smith examined will contests in California and identified four elements that are present in successful challenges to wills based on a claim of undue influence:

  1. A special relationship exists between the person who made the will and the person who benefitted from it;
  2. The person who made the will suffered from a mental or physical condition that would allow their freedom of will to be overcome;
  3. The person who benefited from the will was active in influencing changes to the will; and
  4. The will omits individuals or organizations that one would normally expect to be included in the will or is contrary to the prior expressed intentions of the testator. 

The four elements described above are a good guide to the kind of evidence that is necessary to establish a successful challenge based on undue influence.  See Rachael Welden-Smith “A Statutory Definition of Undue Influence” (2009)

The special relationship element is perhaps the most straightforward, as it goes back to the core value that goes back thousands of years—when certain people benefit from a will, such as lawyers, witnesses, and clergy, it looks fishy and raises the specter of undue influence.

The Importance of Presumptions

In recent years, one fact pattern has taken place so often and so prominently that the California legislature has intervened. That is when a caregiver to the testator benefits from the will or trust. In 2019, California amended its laws regarding the presumption of undue influence to include transfers made to caregivers.  Interestingly, Probate Code section 21380(a)(4) includes a presumption of undue influence if a caregiver “commenced a marriage, cohabitation, or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult” or within “six months after the marriage, cohabitation, or domestic partnership commenced.  This provision doesn’t impact the legality of the marriage between the caregiver and the transferor. But if the caregiver marries the person who created the will within six months of the transfer, the caregiver has the burden of proving by clear and convincing evidence that the transfer was not the product of undue influence or fraud. 

While a shift in who has the burden of proof might seem like a technicality, in many cases it can be the difference between winning or losing a lawsuit. It is difficult to prove a negative, and that is what is involved if you must show that a transfer was not the product of undue influence.  In addition, in many cases involving a will or a trust, the testator has passed away and is unable to testify.  It also might be difficult to produce written evidence or witnesses that support the claim that the testator genuinely intended to benefit the caregiver.

The Omitted Spouse

If California law tends to look at transfers to caregivers with suspicion, the opposite presumption often applies to spouses. We expect testators to give their estate to loved ones. And our most strongly held expectation is that when someone dies, their surviving spouse will be protected and receive something significant. This expectation is so strong that a legal doctrine exists to protect what is commonly referred to as the omitted or pretermitted spouse. Thus, if you are a surviving spouse and have been left out of the terms of a will or trust, you are often in a good position to challenge the will, sometimes even without showing evidence of undue influence.

Finding Out About Your Situation of Undue Influence

Undue influence cases are fact-intensive. They often involve various kinds of direct and circumstantial evidence about the intent of the person who made the will.  It is possible for an omitted beneficiary to show that their omission was the product of undue influence. And presumptions are not definitive. Thus, a caregiver may be able  to show that the testator genuinely intended to benefit them.

Whether you are seeking to challenge the will or to defend the testator’s allocation of property, gifts, and assets, we bring decades of experience when advising our clients on how strong or weak their case might be and what to expect should they seek to bring a claim of undue influence or to defend themselves against such a claim. 

Contact KJM Law Partners Today

KJM Law Partners focuses on representing clients in connection with sophisticated state and tax planning matters and related litigation.  For more than 30 years KJM Law Partners has been based in Los Angeles County and represented trustees, beneficiaries, and other parties to probate and trust litigation matters throughout California.  To find out how an attorney at KJM Law Partners may be able to assist you, please call us at 626-568-9300 or email us at info@kjmlaw.com.

Ashley Brown, Writer and Blogger, Social Media Coordinator