Personal Injury, Probate, Employment, & Complex Litigation


Undue Influence

Undue influence is one of the most common ways to overturn an otherwise valid will or trust. Essentially, undue influence occurs when a person’s influence over the testator is sufficient to override the testator’s own desires.

While this concept exists throughout the various areas of the law, it is defined by Probate Code section 86 as being the same definition as found in Welfare and Institutions Code section 15610.70.

That definition is that when determining whether a decision was a product of undue influence the court must consider the following factors:

  1. The vulnerability of the victim;
  2. The bad actor’s apparent authority over the testator;
  3. The improper actions and tactics used by the bad actor; and
  4. The equity of the result

It should be noted that each of these aspects of undue influence are factors, not elements, meaning that you do not have to show that all four exist. In fact, the legislature only states that a showing of inequity of results alone is not sufficient. Realistically, to convince a trier of fact that a testamentary document is a product of undue influence, you should have at least some evidence for all four factors, but have very strong evidence in one or more of the factors. Additionally, each of these four factors appear to be relatively straight forward, but in practicality are very convoluted.

Because undue influence is insidious and therefore incredibly difficult to prove directly, there is a burden of proof shift that can occur in an undue influence case. If you can show each of the following, then the testamentary instrument is presumed to be a product of undue influence and the bad actor must prove that it is not (as discussed in the California Supreme Court case Rice v. Park (2002) 28 Cal.4th 89.):

  1. The bad actor had a confidential relationship with the testator;
  2. The bad actor actively participated in procuring the testamentary instrument; and
  3. The bad actor benefits unduly from the testamentary instrument.

Unlike proving undue influence directly, these three items are elements, so you must prove the existence of all three to shift the burden of proof. Again, each of these elements sound straight forward, but they are anything but that with a mountain of case law involving each of these elements further defining what each element is. As such, even if you believe you have evidence of all three elements, it is recommended that you contact an attorney to assist you in challenging the testamentary instrument.