Buffington Law Firm’s trust and elder law litigation team has decades of experience dealing with cases in which undue influence is alleged. The fact patterns for these cases are depressingly similar in many instances. Typically a younger friend, relative, or adult child or grandchild will pressure an elderly or infirm person to change their estate plan, or convey property, in favor of the younger person. For undue influence to occur it is not necessary that the victim lacks mental capacity. That there is such a requirement is a common misconception.
Undue influence requires a showing that the testator’s free will was overpowered by the will of a stronger person. [Lintz v. Lintz (2014) 222 Cal. App. 4th 1346, 1354]. For purposes of the Probate Code, undue influence is defined by Welfare and Institutions Code Section 15610.70(a) “the excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity” [Prob. Code §86; Welf. & Inst. Code 15610.70(a)].
Direct evidence of undue influence is rarely obtainable. Usually only the defendant and victim are present when it occurs. Courts will normally accept circumstantial evidence as proof that undue influence took place.
In some cases a Plaintiff can shift the burden of proof to the defendant, which can be a tremendous advantage in a trial. The burden of proof shifts to the defendant upon a showing by the party asserting undue influence that the following elements are met: a) the person alleged to have exercised undue influence had a confidential relationship with the testator; b) the person actively participated in procuring the instrument’s preparation or execution (i.e. the trust amendment, deed, or other document that the victim signed due to undue influence); and 3) the person would benefit unduly by the testamentary instrument. [David. v. Hermann (2005) 129 Cal. App. 4th 672, 684]. So in a scenario where a person procures the document, stands in a confidential relationship to the victim, i.e. a close family member, someone to whom the victim gave power of attorney, etc., and benefits from the undue influence, the plaintiff can shift the burden of proof to the wrongdoer.
If you are involved in a situation in which undue influence appears to be an issue, we invite you to contact us for a free legal consultation. All consultations are with an experienced trust and elder law attorney, are completely confidential, and there is never any obligation.